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CRIMES 
PUNISHMENTS 



(aOO 

B3 88JI 



BY THE SAME AUTHOR. 



Crown 8vo. cloth extra, 7*. 6d. 

PRIMITIVE MANNERS AND CUSTOMS. 
By James A. Farrbr. 

' A book which is really both instructive and amusing, 
and which will open a new field of thought to many 
readers.' — ^AxHENiCUM. 

'An admirable example of the application of the scientific 
method and the working of the truly scientific spirit.' 

Saturday Review. 

CHATTO & WINDUS, Piccadilly, W. 



CRIMES 



PUNISHMENTS 



V TRANSLATION 



BECCARIA'S 'DEI DELITTI £ DELLE PE^E' 



JAMES ANSON FARRER 







^onbon 
CHATTO & WINDUS, PICCADILLY 



A// rifiti rtitrvrd 



CjJr7j~JV£) L.U. 



LONDON : PRINTED BY 

SPOTTISWOODB AND CO., NBW-STRBBT 8QUARB 

AND PARLIAMENT STREET 



PREFACE, 



The reason for translating afresh Beccaria's *Dei 
Delitti e delle Pene * (* Crimes and Punishments *) is, 
that it is a classical work of its kind, and that the 
interest which belongs to it is still far from being 
merely historical. 

It was translated into English long ago ; but the 
change in the order of the several chapters and pa- 
ragraphs, which the work underwent before it was 
clothed in its final dress, is so great, that the new 

translation and the old one really constitute quite 
different books. 

The object of the preliminary chapters is to place 
the historical importance of the original in its just 
light, and to increase the interest of the subjects it 
discusses. 

The Translator has abstained from all criticism or 
comment of the original, less from complete agree- 



» • I* 



vi PREFACE. 

ment with all its ideas than from the conviction that 
annotations are more often vexatious than profitable, 
and are best left to the reader to make for himself 
There is scarcely a sentence in the book on which a 
commentator might not be prolix. 

To combine the maximum of perspicuity with 
the maximum of fidelity to the original has been the 
cardinal principle observed in the translation. But it 
would, of course, have been no less impossible than 
contrary to the spirit of the original to have at- 
tempted to render perfectly comprehensible what the 
author purposely wrapped in obscurity. A transla- 
tion can but follow the lights ahd shades of the sur- 
face it reflects, rendering clear what is clear in the 
original, and opaque what is opaque. 



CONTENTS. 



CHAPTER I. 
beccaria's life and character. 

PAGE 

State of Lombardy under Count Finnian— The state of criminal 
law— Torture still in use — The abolition of torture before Bec- 
caria — Beccaria not a lawyer by profession — Autobiographical 
letter of Beccaria to the Abbe Morellet— Influence on Beccaria 
of Montesquieu and Helvetius — His philosophy of life and 
truth — His friends, the Verri — Connection with Pietro Verri — 
The Caffe periodical— Reception of the * Dei Delitti * in Paris— 
Translation of it by Morellet — Commentary by Voltaire — The 
Swiss medal — Beccaria's fear of ecclesiastical persecution a 
motive for occasional obscurity — Feeling in Venice against the 
author — Facchinei*s criticism — Protection of Count Firmian — 
Adverse criticism by contemporary lawyers — Ramsay's letter 
to Diderot, illustrative of the despair of reform — Beccaria's 
journey to Paris — His speedy return— Enmity and jealousy of 
Pietro Verri — Beccaria's invitation to St. Petersburg — His lec- 
tures on political economy, and later life . . . . i 

CHAPTER II. 

THE GENERAL INFUENCE OF BECCARIA ON LEGISLATION. 

Present inconceivability of torture due to Beccaria — How far he 
was the first to write against it — Torture first abolished in 
England — Beccaria's influence in Russia — Quotations from his 
treatise in Catharine's instruction for the new code — Beccaria's 
influence in France; Tuscany; Austria; Pennsylvania — Beccaria 
the first advocate of the abolition of capital punishment — 



viii CONTENTS, 

Relative severity of death and other penalties — Slight rela- 
tion of crime to punishment — Reasons why capital punishment 
is always more uncertain than other penalties — Cases account- 
ing for its uncertainty — The efficiency of a punishment its real 
test — Futility of discussing the general right of punishment — 
Instances of the abolition of capital punishment in ancient and 
modem times — The argument for its abolition the same as that 
for the abolition of torture 29 

CHAPTER III. 

THE INFLUENCE OF BECCARIA IN ENGLAND. 

General debt of English law to Beccaria — English utilitarianism 
due to Beccaria — His influence first traceable in Blackstone — 
Fallacy of old criminal law in making the amount of temptation 
the measure of punishment — Eden the first to expose it in his 
* Principles of Penal Law * — Attitude of men of letters to the 
criminal law, as of Groldsmith, Lord Kames, and Fielding — First 
attempt at law reform by Sir W. Meredith — Constant opposi- 
tion of the House of Lords — Effect on reform of Madan's * Exe- 
cutive Justice * and Paley's chapter on Crimes and Punishments 
— Relation of Paley to Lord Chief Justice Ellenborough — 
Pale/s defence of English law — His approval of the sugges- 
tion of throwing murderers into a den of wild beasts — 
Howard's ideas of reform and contribution to it — Bad effect of 
the French Revolution in England — Romilly's original idea of 
reform — His Privately Stealing Bill — His criticism of Paley — 
His Shoplifting Bill rejected by the Lords — The pillory de- 
fended by Lord Ellenborough — Capital puoishmeot for forgery 
by Lord Tenterden — Rapid changes after the Reform Bill — 
The triumph of Beccaria's principles . ... 46 

CHAPTER IV. 

THE PROBLEMS OF PENOLOGY. 

The spirit of Beccaria's work — The slow progress of penology as 
a science— Its difficulties — Confusion of guilty and innocent — 
Relation of intention to crime — Objects and animals once part 
of the criminal world — Penal laws the expression of moral 
sentiments, and also the cause of them — Tendency of actions 



CONTENTS. ix 

PAGE 

to remain immoral when they have ceased to be penal — Illus- 
tration from suicide and infanticide — The Equality of punish- 
ment, its Analogy and Proportion to crime, as principles of 
penal law — The object of punishment — The difficulties of the 
deterrent-and-reformative theory — ^The object of law to regu- 
late natural vindictiveness — Traceable historically to this pur- 
pose — The measure of punishment on this theory — Absence 
of any such measure at present — Possibility of a fixed scale of 
crime and punishment illustrated by the Chinese code — ^The 
question of aggravated penalties for re-convictions — The custom 
contrary to the spirit of the laws : its evil results — Limitations 
to the universality of the custom — Its error of principle proved 
by number of re-convictions — The preventiveness of punish- 
ment diminished by its great uncertainty — Frequent changes 
of English penal system — Failure of present system to reform 
or deter — Punishment itself a cause of crime — Its possible re- 
laxation — Punishments most fitted for injuries to the person, 
or for offences like cruelty to animals — Indirect preventives of 
crime — A Prisoners' Fund — Cumulative sentences — Conclusion 69 



BECCARIA'S * CRIMES AND PUNISHMENTS/ 

TRANSLATED. 

CHAP. 

To THE Reader 11 1 

I. Introduction 117 

II. The Origin of Punishments— Right of Punish- 
ment 121 

III. Consequences 124 

IV. Interpretation of the Laws 125 

V. Obscurity of the Laws 130 

VI. Imprisonment 132 

VII. Proofs and Forms of Judgments . . . . 134 

VIII. Witnesses 138 

IX. Secret Accusations 139 

X. Leading Questions 144 

XL Oaths 146 



C0NTEN7S. 



CHAP. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 

XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX. 

XXX. 

XXXI. 

XXXII. 

XXXIII. 

XXXIV. 

XXXV. 

XXXVI. 

XXXVII. 

XXXVIII. 

XXXIX. 

XL. 

XLI. 

XLII. 



PAGE 

Torture 148 

Prosecutions and Prescriptions . . .157 

Criminal Attempts, Accomplices, Impunity 162 

The Mildness of Punishments . . .165 

Capital Punishment 169 

Banishment and Confiscations . . .180 

Infamy 183 

Promptness of Punishments . . . .185 

Certainty of Punishments — Pardons . .189 

Asylums of Refuge 192 

Proscription 194 

Proportion between Crimes and Punish- 
ments 196 

Measure of Punishments .... 199 

Division of Punishments 202 

Crimes of High Treason .... 204 

Crimes against Personal Security— Deeds 
OF Violence 205 

Injuries 208 

Duels 212 

Thefts 213 

Smuggling 214 

Debtors 216 

Public Peace 220 

Political Idleness 221 

Suicide 222 

Crimes of Difficult Proof .... 227 

A Particular Kind of Crime . . . . 231 

Sources of Errors and Injustice in Legis- 
lation ; AND firstly of FALSE IdEAS OF 

Utility 233 

Family Spirit 235 

The Treasury 240 

The Prevention of Crimes— Knowledge- 
Magistrates— Rewards .... 242 

Conclusion 215 



* All men, whether singly or collectively, naturally do wrong, nor is 
there any law which will prevent it. For every kind of punishment 
has been successively tried by mankind, if haply they might suffer less 
injury from malefactors. And it is probable that in their origin punish- 
ments for even the gravest crimes are comparatively mild, but that, as 
they are disr^arded, most of them come in course of time to be pun- 
ishments of death ; yet this in its turn is also disregarded. Either, 
therefore, some greater terror than death must be invented, or death at 
least serves not as a deterrent, men being led to risk it, sometimes by 
poverty, which emboldens them through necessity, sometimes by power, 
which makes them overreaching and insolent ; or sometimes by some 
other circumstance which subordinates all a man's passions to some one 
passion that is insuperable and dominant. . . . And it is simply im- 
possible, and a very foolish idea, to think that, when human nature 
is firmly bent on doing an)rthing, it can be deterred from it either by 
force of law or by any other terror.* — Thucydides. 

* How many condemnations have I seen more criminal than the 
crimes themselves ! ' — Montaigne. 



CRIMES 



AND 



PUNISHMENTS. 



CHAPTER I. 
beccaria's life and character. 

The * Dei Delitti e delle Pene ' was published for the 
first time in 1764. It quickly ran through several 
editions, and was first translated into French in 1766 
by the Abb6 Morellet, since which time it has been 
translated into most of the languages of Europe, not 
excluding Greek and Russian, 

The author of the book was a native of Milan, 
then part of the Austrian dominions, and under the 
governorship of Count Firmian, a worthy representa- 
tive of the liberal despotism of Maria Theresa and 
her chief minister, Kaunitz. Under Firmian's ad- 
ministration a period of beneficial reforms began for 
Lombardy. Agriculture was encouraged, museums 
and libraries extended, great works of public utility 
carried on. Even the Church was shorn of her privi- 



2 BECC ARIA'S LIFE AND CHARACTER. 

leges, and before Firmian had been ten years in 
Lombardy all traces of ecclesiastical immunity had 
been destroyed ; the jurisdiction of the Church, and 
her power to hold lands in mortmain were restricted, 
the right of asylum was abolished, and, above all, the 
Holy Office of the Inquisition. Let these few facts 
suffice to indicate the spirit of the immediate political 
surroundings in the midst of which Beccaria*s work 
appeared. 

,But, in spite of the liberalism of the Count, the 
penal laws and customs of Lombardy remained the 
same ; and the cruel legal procedure by torture 
existed still, untouched by the salutary reforms 
effected in other departments of the Government. 
There was the preparatory torture, to extort confes- 
sion from criminals not yet condemned ; there was 
torture for the discovery of a criminal's accomplices ; 
and there was the extraordinary or greater torture, 
which preceded the execution of a sentence of death. 
It is true that torture could only be applied to crimes 
of a capital nature, but there was scarcely an act in 
the possible category of crimes that was not then 
punishable with death. ' Proofs of guilt were sought 
almost entirely from torture and secret accusations, 
whilst penalties depended less on the text of any 
known law than on the discretion — that is, on the 
caprice — of the magistrate. 

It was this system that Beccaria*s little work 



BECC ARIA'S LIFE AND CHARACTER. 3 

destroyed, and had that been its only result, it would 
still deserve to live in men's memories for its historical 
interest alone. For upon the legislation of that time, 
and especially upon that of Italy, this pamphlet on 
criminal law broke like a ray of sunlight on a dun- 
geon floor, making even blacker that which was black 
before by the very brilliancy which it shed upon it. 
To Beccaria primarily, though not of course solely, 
belongs the glory of having expelled the use of 
torture from every legal tribunal throughout Chris- 
tendom. 

Frederick the Great had already abolished it in 
Prussia ; ^ it had been discontinued in Sweden; it was 
hot recognised in the military codes of Europe, and 
Beccaria said it was not in use in England. This 
was true generally, although the peine forte et dure^ 
by which a prisoner who would not plead was sub- 
jected to be squeezed nearly to death by an iron 
weight, was not abolished till the year 1771.^ 

It is remarkable that a book which has done more 
for law reform than any other before or since should 
have been written by a man who was not a lawyer by 
profession, who was totally unversed in legal practice, 
and who was only twenty-six when he attacked a 
system of law which had on its side all authority, 
living and dead. Hume was not twenty-seven when 

* By a Cabinet Order of June 3, 1740. See Carlyle's Frederick the 
Great f Hi. 7. 

* Pike, History of Crime in England^ ii. 283, 346. 

B 2 



4 B EC CARTA'S LIFE AND CHARACTER, 

he published his 'Treatise on Human Nature/ nor 
was Berkeley more than twenty-six when he pub- 
lished his 'Principles of Human Knowledge.' The 
similar precocity displayed by Beccaria is suggestive, 
therefore, of the inquiry, how far the greatest revolu- 
tions in the thoughts or customs of the world have 
been due to writers under thirty years of age. 

The following letter by Beccaria to the Abb6 
Morellet in acknowledgment of the latter*s transla- 
tion of his treatise is perhaps the best introduction to 
the life and character of the author. The letter in 
question has been quoted by ViUemain in proof of 
the debt owed by the Italian literature of the last 
century to that of France, but from the allusions 
therein contained to Hume and the ' Spectator ' it is 
evident that something also was due to our own. 
Beccaria had spent eight years of his youth in the 
college of the Jesuits at Parma, with what sense of 
gratitude this letter will show. The following is a 
translation of the greater part of it : — 

Your letter has raised in me sentiments of the deepest 
esteem, of the greatest gratitude, and the most tender friend- 
ship; nor can I confess to you how honoured I feel at seeing 
my work translated into the language of a nation which is 
the mistress and illuminator of Europe. I owe everything 
to French books. They first raised in my mind feelings of 
humanity which had been suffocated by eight years of a 
fanatical education. I cannot express to you the pleasure 
with which I have read your translation ; you have embel- 



BECC ARIA'S LIFE AND CHARACTER. 5 

lished the original, and your arrangement seems more 
natural than, and preferable to, my own. You had no need 
to fear offending the author's vanity : in the first place, 
because a book that treats of the cause of humanity belongs, 
when once published, to the world and all nations equally ; 
and as to myself in particular, I should have made little 
progress in the philosophy of the heart, which I place above 
that of the intellect, had I not acquired the courage to see 
and love the truth. I hope that the fifth edition, which will 
appear shortly, will be soon exhausted, and I assure you 
that in the sixth I will follow entirely, or nearly so, the 
arrangement of your translation, which places the truth in a 
better light than I have sought to place it in. 

As to the obscurity you find in the work, I heard, as I 
wrote, the clash of chains that superstition still shakes, and the 
cries of fanaticism that drown the voice of truth; and the per- 
ception of this frightful spectacle induced me sometimes to 
veil the truth in clouds. I wished to defend truth, with- 
out making myself her martyr. This idea of the neces- 
sity of obscurity has made me obscure sometimes without 
necessity. Add to this my inexperience and my want of 
practice in writing, pardonable in an author of twenty-eight,* 
who only five years ago first set foot in the career of 
letters. 

D'Alembert, Diderot, Helvetius, Buffon, Hume, illustri- 
ous names, which no one can hear without emotion ! Your 
immortal works are my continual study, the object of my 
occupation by day, of my meditation in the silence of night 
Full of the truth which you teach, how could I ever have 
burned incense to worshipped error, or debased myself to 
lie to posterity? I find myself rewarded beyond my hopes 

* Beccaria was bom in 1 738, and his book appeared in 1 764. There- 
fore he was only 26. The 28 must refer to the time he wrote the letter. 



6 B EC CARTA'S LIFE AND CHARACTER. 

in the signs of esteem I have received from these celebrated 
persons, my masters. Convey to each of these, I pray you, 
my most humble thanks, and assure them that I feel for 
them that profound and true respect which a feeling soul 
entertains for truth and virtue. 

My occupation is to cultivate philosophy in peace, and 
so to satisfy my three strongest passions, the love, that is, of 
literary fame, the love of liberty, and pity for the ills of man- 
kind, slaves of so many errors. My conversion to philo- 
sophy only dates back five years, and I owe it to my perusal 
of the *Lettres Persanes.* The second work that completed 
my mental revolution was that of Helvetius. The latter 
forced me irresistibly into the way of truth, and aroused my 
attention for the first time to the blindness and miseries of 
humanity. 

... I lead a tranquil and solitary life, if a select com- 
pany of friends in which the heart and mind are in continual 
movement can be called solitude. This is my consolation, 
and prevents me feeling in my own country as if I were in 
exile. 

My country is quite immersed in prejudices, left in it 
by its ancient masters. The Milanese have no pardon for 
those who would have them live in the eighteenth* century. 
In a capital which counts 120,000 inhabitants, you will 
scarcely find twenty who love to instruct themselves, and 
who sacrifice to truth and virtue. My friends and I, per- 
suaded that periodical works are among the best means for 
tempting to some sort of reading minds incapable of more 
serious application, are publishing in papers, after the manner 
of the English * Spectator,' a work which in England has con- 
tributed so much to increase mental culture and the progress 
of good sense. The French philosophers have a colony in 



BE C CARTA'S LIFE AND CHARACTER, 7 

this America, and we are their disciples because we are the 
disciples of reason, &c 

Thus, the two writers to whom Beccaria owed most 
were Montesquieu and Helvetius. The * Lettres Per- 
sanes ' of the former, which satirised so many things 
then in custom, contained but little about penal laws ; 
but the idea is there started for the first time that 
crimes depend but little on the mildness or seve- 
rity of the punishments attached to them. * The 
imagination,' says the writer, ' bends of itself to the 
customs of the country ; and eight days of prison 
or a slight fine have as much terror for a European 
brought up in a country of mild manners as the 
loss of an arm would have for an Asiatic.'* The 
' Esprit des Lois,' by the same author, probably contri- 
buted more to the formation of Beccaria's thoughts 
than the ' Lettres Persanes,' for it is impossible to read 
the twelfth book of that work without being struck 
by the resemblance of ideas. The ' De L' Esprit ' of 
Helvetius was condemned by the Sorbonne as *a 
combination of all the various kinds of poison scat- 
tered through modern books.' Yet it was one of the 
most influential books of the time. We find Hume 
recommending it to Adam Smith for its agreeable 
composition father than for its philosophy ; and a 
writer who had much in common with Beccaria drew 

» Lettre 80. 



8 BECC ARIA'S LIFE AND CHARACTER, 

from it the same inspiration that he did. That writer 
was Bentham, who tells us that when he was about 
twenty, and on a visit to his father and stepmother in 
the country, he would often walk behind them read- 
ing a book, and Jhat his favourite author was Helvetius. 

The influence of the predominant French philo- 
sophy appears throughout Beccaria*s treatise. Human 
justice is based on the idea of public utility, and the 
object of legislation is to conduct men to the greatest 
possible happiness or to the least possible misery. 
The vein of dissatisfaction with life and of disbelief 
in human virtue is a marked feature of Beccaria's 
philosophy. To him life is a desert, in which a few 
physical pleasures lie scattered here and there ; ^ his 
own country is only a place of exile, save for the pre- 
sence of a few friends engaged like himself in a war 
with ignorance. Human ideas of morality and virtue 
have only been produced in the course of many cen- 
turies and after much bloodshed, but slow and difficult 
as their growth has been, they are. ever ready to dis- 
appear at the slightest breeze that blows against them. 

Beccaria entertains a similar despair of truth. 
The history of mankind represents a vast sea of errors, 
in which at rare intervals a few truths only float up- 
permost ; and the durability of great truths is as that 
of a flash of lightning when compared with the long 

' I Piaceri delta Immaginazionei in his collected works by Villari, 
p. 546. 



BECC ARIA'S LIFE AND CHARACTER. g 

and dark night which envelops humanity. For this 
reason he is ready to be the servant of truth, not her 
martyr ; and he recommends in the search for truth, 
as in the other affairs of life, a little of that * philoso- 
phical indolence ' which cares not too much about re- 
sults, and which a writer like Montaigne is best fitted 
to inspire.^ 

The few select friends who made life at Milan just 
supportable were Pietro and Alessandro Verri, Frisi, 
and some others. Pietro Verri was ten years older 
than Beccaria, and it was at his instance that the lat- 
ter wrote his first treatise on a subject which then de- 
manded some attention, namely, ' The Disorders and 
Remedies of the Coinage.' This work was published 
two years before the ' Crimes and Punishments,' but 
though it provoked much discussion at the time, it 
has long since ceased to have any interest. 

Count Pietro Verri was the son of Gabriel, who 
was distinguished alike for his legal knowledge and 
high position in Milan. At the house of Pietro, 
Beccaria and the other friends used to meet for the 
discussion and study of political and social questions. 
Alessandro, the younger brother of Pietro, held the 
office of 'Protector of Prisoners,' an office which con- 
sisted in visiting the prisons, listening to the grievances 
of the inmates, and discovering, if possible, reasons for 
their defence or for mercy. The distressing sights he 

* Villari, Opere dt Beccaria, 547. 



lo BECC ARIA'S LIFE AND CHARACTER. 

was witness of in this capacity are said to have had 
the most marked effect upon him ; and there is no 
doubt that this fact caused the attention of the 
friends to be so much directed to the state of the 
penal laws. It is believed to have been at the insti- 
gatjon of the two brothers that Beccaria undertook 
the work which was destined to make his name so 
famous. 

Why then did Pietro Verri not write it himself? 
The answer would seem to be, out of deference for 
the position and opinions of his father. It was some 
time later that Gabriel defended the use of torture in 
the Milanese Senate, and Pietro wrote a work on tor- 
ture which he did not publish in his father's lifetime. 
It was probably due also to the father's position that 
Alessandro held his office of Protector of the Prisoners, 
so that there were obvious reasons which prevented 
either brother from undertaking the work in question. 

It was at one time said that the work really was 
Pietro Verri's and not Beccaria's, for it was published 
anonymously, and away from Milan. The domestic 
circumstances of Pietro lent some countenance to this 
story, as did also the fact that he charged himself 
with the trouble of making a correct copy of the 
manuscript, so that a copy of the treatise does actu- 
ally exist in Pietro's handwriting. The story, how- 
ever, has long since been disproved ; yet to show the 
great interest which Pietro took in the work, and the 



BECC ARIA'S LIFE AND CHARACTER. ii 

ready assistance he gave to his friend, a letter to him 
from Beccaria, with respect to the second edition, de- 
serves mention, in which Beccaria begs him not only 
to revise the spelling correctly, but generally to erase, 
add, and correct, as he pleases. It would appear 
that he was already tired of literary success, for he 
tells his friend, that but for the motive of preserving 
his esteem and of affording fresh aliment to their 
friendship, he should from indolence prefer obscurity 
to glory itself 

There is no doubt that Beccaria always had a strong 
preference for the contemplative as opposed to the 
practical and active life, and that but for his friend 
Pietro Verri he would probably never have distin- 
guished himself at all. He would have said with 
Plato that a wise man should regard life as a storm, 
and hide himself behind a wall till it be overpast. 
He almost does say this in his essay on the * Pleasures 
of the Imagination,' published soon after the * Crimes 
and Punishments.' He advises his reader to stand 
aside and look on at the rest of mankind as they run 
about in their blind confusion ; to make his relations 
with them as few as possible ; and if he will do them 
any good, to do it at that distance which will prevent 
them from upsetting him or drawing him away in their 
own vortex. Let him in happy contemplation enjoy 
in silence the few moments that separate his birth 
from his disappearance. Let him leave men to fight, 



t2 BECCARIA'S LIFE AND CHARACTER. 

to hope, and to die ; and with a smile both at him- 
self and at them, let him repose softly on that en- 
lightened indifference with regard to human things 
which will not deprive him of the pleasure of being 
just and beneficent, but which will spare him from 
those useless troubles and changes from evil to good 
that vex the greater part of mankind. 

This essay on the * Imagination' was published soon 
after the * Crimes and Punishments * in the periodical 
to which Beccaria alludes in his letter to Morellet. 
* The Caff(6 ' was the name of the periodical which, 
from June 1764, he and his friends published every 
tenth day for a period of two years. The model of 
the paper was the English * Spectator,' and its object 
to propagate useful knowledge pleasantly among the 
Milanese, whilst its name rested on the supposition 
that the friends who composed it executed their 
labours during meetings in a coffee-house. The most 
interesting contributions to it by Beccaria are his 
' Fragment on Style,' his article on * Periodical News- 
papers,' and his essay on the * Pleasures of the Imagi- 
nation.' 

The publication of the 'Delitti e delle Pene' 
interrupted its author's dreams of philosophical 
calm, by fulfilling his hopes of literary fame. The 
French encyclopaedists were the first to recognise its 
merits, and D'Alembert, the mathematician, at once 
predicted for the writer the reward of an immortal 



BECC ARIA'S LIFE AND CHARACTER. 13 

reputation. Morellet's translation, in which the 
arrangement, though not the matter of the text, was 
entirely altered, ran through seven editions in six 
months, and Beccaria, as has been seen, was only too 
delighted with the honour thus conferred on him to 
complain ' in any way of the liberties taken by the 
translator with the original, 

A still greater honour was the commentary 
written by Voltaire. The fact that only within a 
few miles of his own residence a girl of eighteen had 
been hung for the exposure of a bastard child led 
Voltaire to welcome Beccaria's work as a sign that 
a period of. softer manners and more humane laws 
was about to dawn upon the world's history. Should 
not a people, he argues, who like the French pique 
themselves on their politeness also pride themselves 
on their humanity } Should they retain the use of 
torture, merely because it was an ancient custom, 
when the experience of England and other countries 
showed that crimes were not more numerous in 
countries where it was not in use, and when reason 
indicated the absurdity of inflicting on a man, before 
his condemnation, a punishment more horrible than 
would await his proved guilt ? What could be more 
cruel, too, than the maxim of law that a man who 
forfeited his life forfeited his estates.^ What more 
inhuman than thus to punish a whole family for the 
crime of an individual, perhaps condemning a wife 



H T BECC ARIA'S LIFE AND CHARACTER. 

and children to beg their bread because the head of 
the family had harboured a Protestant preacher or 
listened to his sermon in a cavern or a desert ? Amid 
the contrariety of laws that governed France, the 
object of the criminal procedure to bring an accused 
man to destruction might be said to be the only law 
which was uniform throughout the country. 

So signal a success in France was a sufficient 
guarantee of success elsewhere. A knowledge of the 
book must have speedily crossed the Channel, for 
Blackstone quoted it the very year after its publica- 
tion. It was first translated into English in 1768, 
together with Voltaire's commentary; but just as 
Morellet's translation professed to have been pub- 
lished at Philadelphia, so the English translator 
kept his name a secret. The Economical Society of 
Berne, which was accustomed to bestow a gold medal 
on the writer of the best treatise on any given subject, 
violated its own rules in favour of the anonymous 
writer of the * Delitti,* inviting him to disclose his name, 
and to accept the gold medal * as a sign of esteem 
due to a citizen who had dared to raise his voice in 
favour of humanity against the most deeply engrained 
prejudices.' 

But there was another side to the brightness of 
this success. In literature as in war no position of 
honour can be won or held without danger, and of 
this Beccaria seems to have been conscious when he 



BECCARIA'S LIFE AND CHARACTER. 15 

pleaded against the charge of obscurity, that in writ- 
ing he had had before his eyes the fear of ecclesias- 
tical persecution. His love for truth, he confessed, 
stopped short at the risk of martyrdom. He had, 
indeed, three very clear warnings to justify his fears. 
Muratori, the historian, had suffered much from 
accusations of heresy and atheism, and had owed his 
immunity from worse consequences chiefly to the 
liberal protection of Pope Benedict XIV. The 
Marquis Scipio Maffei had also incurred similar 
charges for his historical handling of the subject of 
Free-will. But there was even a stronger warning 
than these, and one not likely to be lost on a man 
with youth and life before him ; that was the fate of 
the unfortunate Giannone, who, only sixteen years 
before Beccaria wrote, had ended with his life in the 
citadel of Turin an imprisonment that had lasted 
twenty years, for certain observations on the Church 
of Rome which he had been r£ish enough to insert in 
his ' History of Naples.' 

Of all the attacks which the publication of the 
* Dei Delitti ' provoked, the bitterest came naturally 
from a theological pen. At the very time that 
Beccaria's work appeared, the Republic of Venice 
was occupied in a violent contest touching the 
Inquisitorial Council of Ten ; and imagining that 
Beccaria's remarks about secret accusations had 
been directed against the procedure of their famous 



i6 B EC CARTA'S LIFE AND CHARACTER, 

tribunal, whilst they attributed the work to a Vene- 
tian nobleman called Quirini, they forbade its circu- 
lation under pain of death. It was on their behalf 
and with this belief that the Dominican Padre, 
Facchinei, took up his pen and wrote a book, entitled, 

* Notes and Observations on the ** Dei Delitti," ' in 
which he argued, among other things, not only that 
secret accusations were the best, cheapest, and most 
effective method of carrying out justice, but that 
torture was a kind of mercy to a criminal, purging 
him in his death from the sin of falsehood. 

In these * Notes and Observations ' Beccaria and 
his work were assailed with that vigour and lucidity for 
which the Dominican school of writing has always 
been so conspicuous. The author was described as * a 
man of narrow mind,' * a madman,' * a stupid impostor,* 
'full of poisonous bitterness and calumnious mor- 
dacity.' He was accused of writing * with sacrilegious 
imposture against the Inquisition,' of believing that 

* religion was incompatible with the good government 
of a state ; ' nay, he was condemned * by all the 
reasonable world as the enemy of Christianity, a bad 
philosopher, and a bad man.* His book was stigma- 
tised as ' sprung from the deepest abyss of darkness, 
horrible, monstrous, full of poison,* containing * miser- 
able arguments,* * insolent blasphemies,' and so forth. 

This fulmination reached Milan on January 15, 
1765, and on the 21st the Risposta, or reply, was 



%BECC ARIA'S LIFE AND CHARACTER, 17 

ready for publication,^ This defence was the work 
of his friends, the Verris, and was published, like 
the original, anonymously ; as it was written in the 
first person throughout, it was generally at the time 
and even till lately ascribed to the same author as the 
original, but the fact is now established beyond doubt 
that the real authors were Pietro and his brother. The 
writers wisely refrained from the use of retaliatory 
language, confining themselves in their defence solely 
to charges of irreligion and sedition, responding to six 
which accused Beccaria of the latter, and to twenty- 
three which declared him guilty of the former. 

But it is probable that Beccaria owed his escape 
from persecution less to his apology than to the 
liberal protection of Count Firmian, who in his report 
of the affair to the Court of Vienna spoke of the 
Risposta as *full of moderation and honourable to 
the character of its author.' That the Count fully 
agreed with Beccaria's opinions on torture is proved 
by a letter he wrote, in which he declares himself to 
have been much pleased with what Beccaria had said 
on the subject. His vanity, he said, had been flattered 
by it, for his own feelings about torture had always 
been the same. The book seemed to him written 
with much love of humanity and much imagination. 
Beccaria always acknowledged his gratitude to the 
Count for his action in this matter. To Morellet he 

' It is published in the Haarlem edition of the DH Delitti, 1766. 

C 



i8 BECCAR/A'S LIFE AND CHARACTER, 

wrote, that he owed the Count his tranquillity, in 
having protected his book; and when, a few years 
later, he published his book on Style, he dedicated it 
to Firmian cis his benefactor, thanking him for having 
scattered the clouds that envy and ignorance had 
gathered thickly over his head, and for having pro- 
tected one whose only object had been to declare 
with the greatest caution and respect the interests 
of humanity. 

Less dangerous personally than the theological 
criticism, but more pernicious to reform, was the 
hostile criticism that at once appeared from the thick 
phalanx of professional lawyers, the sound-thinking 
* practical' men.* From whom only two short extracts 
need be rescued from oblivion, as illustrations of the 
objections once raised against ideas which have since 
become the common groundwork of all subsequent 
legislation, in America as well as in Europe. The 
first extract is from a work on criminal justice by a 
lawyer of Provence, who in 1770 wrote as follows : — 

The treatise * Dei Delitti,' instead of throwing any light 
on the subject of crimes, or on the manner in which they 
should be punished, tends to establish a system of the most 
dangerous and novel ideas, which, if adopted, would go so 
far as to overturn laws received hitherto by the greater part 
of all civilised nations. 

And an advocate to the Parliament of Paris thus 
expressed himself, in refutation of Beccaria : — 



BECC ARIA'S LIFE AND CHARACTER, 19 

What can be thought of an author who presumes to 
establish his system on the debris of all hitherto accepted 
notions, who to accredit it condemns all civilised nations, 
and who spares neither systems of law, nor magistrates, 
nor lawyers ? 

But of far greater historical interest than such 
criticism is that of Ramsay, the Scotch poet and 
painter, to whom a copy of Beccaria's treatise had 
been shown by Diderot, and who wrote a letter about 
it to the latter, which, though it contains some very 
just criticisms on Beccaria, yet reads for the most 
part very curiously by the light of subsequent history, 
and illustrates graphically the despair of all reform 
then felt by most men of reflection.^ 

Ramsay argues that the penal laws of a particular 
country can only be considered with reference to the 
needs of a particular country, and not in the abstract ; 
that the government of a country will always enforce 
laws with a view to its own security ; and that nothing 
less than a general revolution will ever make the 
holders of political power listen for a moment to the 
claims of philosophers. 

But (he goes on) since it would be an absurd folly to 
expect this general revolution, this general reconstruction, 
which could only be effected by very violent means, such as 
would be at least a very great misfortune for the present 
generation, and hold out an uncertain prospect of compen- 
sation for the next one, every speculative work, like the * Dei 

* The letter is in Diderot^s CEitures^ ix. 451-^66. 

C2 



20 BECC ARIA'S LIFE AND CHARACTER. 

Delitti e delle Pene,' enters into the category of Utopias, of 
Platonic Republics and other ideal governments ; which 
display, indeed, the wit, the humanity, and the goodness of 
their authors, but which never have had nor ever will have 
any influence on human affairs. . . . 

I kyiow that those general principles which tend to 
enlighten and improve the human race are not absolutely 
useless . . . that the enlightenment of nations is not with- 
out some effect on their rulers . . . provided that the pre- 
rogative of the latter, their power, their security, their 
authority, their safety, is not touched thereby. ... I know 
well that this general enlightenment, so much boasted of, is a 
beautiful and glorious chimera, with which philosophers love 
to amuse themselves, but which would soon disappear if they 
would open history, and see therefrom to what causes im- 
proved institutions are due. The nations of antiquity have 
passed, and those of the present will pass, before philosophy 
and its influence have reformed a single government. . . . 

. . . The cries of sages and philosophers are as the 
cries of the innocent man on the wheel, where they have 
never prevented, nor will ever prevent him from expiring, 
with his eyes upturned to heaven, which will perhaps some 
day stir up enthusiasm, or religious madness, or some other 
avenging folly, to accomplish all that their wisdom has 
failed to do. It is never the oration of the philosopher 
which disarms the powerful ruler ; it is something else, 
which the combination of chance events brings about. 
Meanwhile we must not seek to force it from him, but 
must entreat humbly for such good as he can grant us, 
that is which he can grant us without injury to himself 

Ramsay was so far right, that whether a revolu- 
tion was the only hope for theories like Beccaria's or 



BECC ARIA'S LIFE AND CHARACTER, 21 

not, the realisation of many of them was one of the 
•first results of that general revolution, which seemed 
to Ramsay so impossible and undesirable. His 
letter, as it is a characteristic expression of that com- 
mon apathy and despair of change which afflict at 
times even the most sanguine and hopeful, so it is, 
from its misplaced despair, a good cure for moods of 
like despondency. For the complete triumph of Bee* 
caria*s theories about torture, to say nothing of other 
improvements in law that he lived to witness, is per- 
haps the most signal instance in history of the con- 
quest of theory over practice. For albeit that his 
theory was at total variance with the beliefs and ideas 
of the whole practical school, Beccaria lived to see 
torture abolished, not only in Lombardy and Tus- 
cany, but in Austria generally, in Portugal and in 
Sweden, in Russia as well as in France. Yet Ram- 
say's fears at the time were more reasonable than the 
hopes of Beccaria. 

There was little of eventfulness in Beccaria's life, 
and the only episode in it of interest was his visit to 
Paris in 1766. Thither he and his friend Pietro had 
been invited by Morellet, in the name of the philo- 
sophers at Paris, and thither he started in October 
1766 ; not with Pietro, who could not leave Milan, but 
with Alessandro Verri, on a journey which was to in- 
clude London as well as Paris, and Was to occupy in 
all a period of six months. 



22 BECC ARIA'S LIFE AND CHARACTElt. 

A few years earlier Beccaria could have imagined 
no greater honour. To associate with the philosophers 
he so highly reverenced, as a philosopher himself, 
what greater happiness or reward could he have 
asked ? Yet when it came there was no charm in it ; 
and it was with difficulty he could be persuaded to 
go. For with his love for distinction there came into 
competition the love of his wife, and if he preferred 
her company to that of the wisest and wittiest cele- 
brities of Paris, who shall say that he was the worse 
philosopher for that ? 

When the visit to Paris was contemplated it was 
a question of either not going at all or of leaving 
Teresa behind ; there was not money enough for her 
to travel too. For Beccaria, though the son of a 
marquis and of noble origin, was not rich. When 
in his twenty-third year he married Teresa, his father 
was so opposed to the match on the score of insuffi- 
ciency of fortune, that for some time after the marriage 
he refused to receive the young couple into his house, 
and they lived in considerable poverty. Appeal had 
even been made to the Government itself to break 
off, if possible, so unsuitable a match ; but the lovers 
had their own way, of course, in the end, though it 
was not for some time that the domestic quarrel was 
healed, and then, it appears, through the mediation of 
Pietro Verri. 

Beccaria would certainly have done better not to 



BECC ARIA'S LIFE AND CHARACTER, 2 J 

have gone to Paris at all. His letters to his wife 
during his absence show that he was miserable all the 
time. In every letter he calculates the duration of 
time that will elapse before his return, and there is an 
even current of distress and affection running through 
all the descriptions of his journey. The assurance is 
frequent that but for making himself ridiculous he 
would return at once. From Lyons he writes that he 
is in a state of the deepest melancholy ; that even the 
French theatre he had so much looked forward to 
fails to divert him ; and he begs his wife to prepare 
people for his speedy return by telling them that the 
air of France has a bad effect on his health. 

Even when Paris was reached, and Beccaria and 
Alessandro were warmly welcomed by D'Alenibert, 
Morellet, Diderot, and Baron Holbach, the home- 
sickness remained. 'You would not believe,' says 
Beccaria to his wife, *the welcomes, the politeness, 
the demonstrations of friendship and esteem, which 
they have shown to me and my companion. Diderot, 
Baron Holbach, and D'Alembert especially enchant 
us. The latter is a superior man, and most simple at 
the same time. Diderot displays enthusiasm and 
good humour in all he does. In short, nothing is 
wanting to me but yourself. All do their best to 
please me, and those who do so are the greatest men 
in Europe. All of them deign to listen to me, and 
no one shows the slightest air of superiority/ Yet 



24 BECC ARIA'S LIFE AND CHARACTER. 

Morellet tells us that even on arrival Beccaria was 
so absorbed in melancholy, that it was difficult to 
get four consecutive words from his mouth. 

Six days after his arrival Beccaria writes in a 
similar strain : that he is in the midst of adorations 
and the most flattering praises, considered as the 
companion and colleague of the greatest men in 
Europe, regarded with admiration and curiosity, his 
company competed for ; in the capital of pleasures, 
close to three theatres, one of them the Com^die Fran- 
^aise, the most interesting spectacle in the world ; and 
that yet he is unhappy and discontented, and unable 
to find distraction in anything. He tells his wife that 
he is in excellent health, but that she must say just 
the contrary, in order that there may be a good pre- 
text for his return ; and the better to ensure this, he 
sends his wife another letter which she may show to 
his parents, and in which, at the end of much general 
news about Paris, he alludes incidentally to the bad 
effect on his health of drinking the waters of the Seine. 
He regrets having to resort to this fiction,' but con- 
siders that he is justified by the circumstances. 

Accordingly he made a rapid journey back, leav- 
ing his ccmpanion to visit England alone ; this expe- 
dition to Paris being the only event that ever broke 
the even tenor of his life. His French friends rather 
deserted him, Morellet in his memoirs going even so 
far as to speak of him as half-mad. But it was to his 



BEC CARTA'S LIFE AND CHARACTER. 25 

friendship with the Verris that this journey to Paris 
was most disastrous, and nothing is more mournful 
than the petty jealousies which henceforth completely 
estranged from him h\s early friends. The fault seems 
to have rested mainly with the two brothers, whose 
letters (only recently published) reveal an amount 
of bitterness against Beccaria for which it is difficult 
to find any justification, and which disposes for ever 
of all claims of their writers to any real nobleness of 
character.^ They complain to one another of Bec- 
caria's Parisian airs, of his literary pride, of his want 
of gratitude ; they rejoice to think that his reputation 
is on the wane ; that his illustrious friends at Paris 
send him no copies of their books ; that he gets no 
letters from Paris ; nay, they even go so far as to 
welcome the adverse criticisms of his *Dei Delitti,' 
and to hope that his * golden book ' is shut up for 
ever.* Alessandro writes to his brother that all 
his thoughts are turned to the means of mortifying 
Beccaria ; and the revenge the brothers think most 
likely to humiliate him is for Alessandro to extend the 
limits of his travels, so a& to compare favourably with 
Beccaria in the eyes of the Milanese. They delight 
in calling him a madman, an imbecile, a harlequin ; 
they lend a feady ear to all that gossip says in his 

' See the two volumes of their Letiere published at Milan by Dr. C. 
Casati, 1880. 

' Lctlcre^ ii. 221 : 'II suo libro d* oro sicuro h chiuso.' 



26 BECC ARIA'S LIFE AND CHARACTER, 

discredit.^ In the most trifling action Pietro sees an 
intended slight, and is especially sore where his literary 
ambition is touched.^ It angers him that Beccaria 
should receive praise for the Apology written against 
Facchinei, the work having been entirely written by 
himself, with some help from his brother, but with 
not so much as a comma from the hand of Beccaria.^ 
Some books which Beccaria had brought to him from 
Paris he imagined were really gifts to him from the 
authors ; he believed that D'Alembert had sent him 
his * Melanges ' of his own accord, not at the request 
of Beccaria, as the latter had represented ; but even 
Alessandro admits that it was concerning the books, 
as Beccaria had said.* In short, the whole correspon- 
dence shows that Pietro Verri was extremely jealous 
of the success which he himself had helped his friend 
to attain, and that disap^inted literary vanit}*^ was 
the real explanation of his suddenly transmuted 
Affection. 

* Lettered ii. 150. 

* Pietro had -sent some of his manuscripts to Morellet, perhaps in 
:the hope that the latter would .offer to translate them. Anyhow Bec- 
caria brought back no compliments to Pietro from Paris, and the key 
.to Pietro's feelings lies in the words he wrote to his brother the day 
.after Beccaria*s return : * Non m^i ha detto una sillaba che mostri che 
.alcuno sappia in Parigi, che io sono al mondo.' 

» Lettere/i, 391 ; ii. 70, 127, 151, 211, 295. It is satisfactory for this 
,point to be settled, for even so lately as 1862, Sig. Cantu, in his work 
«n Beccaria, attributes the Risposta to him, saying that all the intrinsic 
proofs are in favour of its bting his work. P. 58. 

* Ibid, ii. 159. 



BEC CARTA'S LIFE AND CHARACTER. 27 

But, to turn from this unpleasant episode of 
Beccaria's life, Catherine II., soon after his return to 
Milan, invited him to St. Petersburg, to assist in the 
preparation of her intended code of laws. It would 
seem from one of Pietro Verri's letters that Beccaria 
was at first inclined to accept the proposal,* but it is 
improbable that any such offer would really have 
tempted him to exchange Italian suns for Russian 
snows, even if Kaunitz and Firmian had not resolved 
to remove the temptation, by making his talents of 
service at home. This they did by making him Pro- 
fessor of Political Economy in the Palatine School of 
Milan, in November 1768 ; and his published lectures 
on this subject form the largest work he ever wrote. 

There is no need to follow in further detail the 
life of Beccaria, for from this time to his death twenty- 
six years afterwards he never did nor wrote anything 
which again placed him conspicuously in the world's 
eye.* His time was divided between the calls of his 
family and his country, but even as a member of the 
Government he never filled any very important post 
nor distinguished himself in any way above his col- 
leagues. Three years before his death he became a 

> Lettere^ ii. 225. 

* Morellet, M^moires^ i. 167 : * Revenu k Milan il a fait peu de 
chose, et sa fin n'a pas repondu k son debut, phenom^ne commun 
parmi les gens de lettres d'ltalie, qui ont un premier feu bien vif, mais 
qui, k 25 et 30 ans, se d^sabusent comme Salomon et reconnaissent que 
la science est vanit^, sans avoir attendu d'etre aussi savant que lui.' 



28 BECCARIA'S LIFE AND CHARACTER. 

member of a committee for the reform of the civil 
and criminal jurisprudence, and he and his former 
friend Pietro Verri lived to see many of the ideals 
of their youth become the actualities of their man- 
hood, themselves helping to promote their accomplish- 
ment. It is characteristic of Beccaria that on two 
several occasions, when the King of Naples came to 
visit him in his house, he absented himself purposely 
from the irksomeness of an interview. So he lived 
to the age of fifty-six, little noticed by the world, a 
lover of solitude rather than of society, preferring a 
few friends to many acquaintances, leading a quiet 
and useful life, but to the last true to the philosophy 
he had professed in his youth, that it is better to live 
as a spectator of the world than as one with any 
direct interest in the game. 



29 



CHAPTER II. 

THE GENERAL INFLUENCE OF BECCARIA ON 

LEGISLATION. 

It is not easy in the days of a milder administration 
of penal laws than a century ago the most sanguine 
could have dreamed of to do full justice to those 
who laboured, as Beccaria and his friends did, at the 
peril of their lives and liberties, for those very 
immunities which we now enjoy. We cannot con- 
ceive that it should ever have been necessary to 
argue against torture, or that it should have been a 
bold thing to do so ; still less can we conceive that it 
should ever have had its defenders, or that men 
should have been contented with the sophism, that it 
was indeed an evil, but an evil which was necessary 
and inevitable. 

The very success of Beccaria's work has so accus- 
tomed us to its result that we are apt to regard it, as 
men regard a splendid cathedral in their native town, 
with very little recognition of its claims to admira- 
tion. The work is there, they see it, they live under 
its shadow ; they are even ready to boast of it ; but 



30 BECC ARIA'S INFLUENCE ON LEGISLATION, 

what to them is the toil and risk of its builders, or 
the care and thought of its architects ? It may be 
said that this indifference is the very consummation 
Beccaria would most have desired, as it is the most 
signal proof of the success of his labour. So signal, 
indeed, has been that success, that already the 
atrocities which men in those days accepted as 
among the unalterable conditions of their existence, 
or resigned themselves to as the necessary safeguards 
of society, have become so repulsive to the world's 
memory, that men have agreed to hide them from 
their historical consciousness by seldom reading, 
writing, or speaking of their existence. And this is 
surely a fact to be remembered with hopefulness, 
when we hear an evil like war with all its attendant 
atrocities, defended nowadays by precisely the same 
arguments which little more than a hundred years 
ago were urged on behalf of torture, but which 
have proved nevertheless insufficient to keep it in 
existence. 

It may be asked. How far was Beccaria the first to 
protest against the cruelty and absurdity of torture } 
To this it must be replied that although actually he 
was not the first, he was the first to do so with effect. 
The difference between previous writers on the sub- 
ject and Beccaria is the difference between a man 
whose ideas are in advance of those of his age and a 
man who raises the ideas of his age to a level with his 



B EC C ARIA'S INFLUENCE ON LEGISLATION. 31 

own. So early as the sixteenth century Montaigne, 
in his * Essay on Conscience/ had said plainly enough 
that the putting a man to the rack was rather a trial 
of patience than of truth ; that pain was as likely to 
extort a false confession as a true one ; and that a 
judge, by having a man racked that he might not die 
innocent, caused him to die both innocent and racked. 
Also Grevius Clivensis wrote a work whilst in prison 
in Amsterdam, in which he sought to prove that tor- 
ture was iniquitous, fallacious, and unchristian.^ This 
was published in 1624 ; and nearly a century later a 
Jesuit, Spee, wrote against the use of torture, as also 
against the cruel practices in force against witches.^ 
And in later days Montesquieu, twenty years before 
Beccaria, had gone so far as to say that, since a civi- 
lised nation like England had abandoned torture with- 
out evil consequences, it was therefore unnecessary ; 
but he followed the subject to no definite conclusion. 
Beccaria himself was ready enough to refer all his 
thoughts to French inspiration, and to lay aside all 
claim to originality, with respect to which D'Alembert 
once wrote to him : * A man such as you has no need 
of a master, still less of a master like myself You 
are like the Titus Curtius of Tacitus, ex se natus^ nor 
have your offspring any grandparent. A father like 
yourself is enough for them.* 

' CaDtii, Beccaria, 42. 

' In a book called Cautio Criminalism published in 1718. 



32 BEC CARTA'S INFLUENCE ON LEGISLATION. 

But the honour of having been the first country to 
lay aside the use of torture undoubtedly belongs to 
England, just as the honour of having been the first in 
modem times to abolish capital punishment, except 
for political offences, belongs to Russia; and the 
practical example thus afforded by our laws probably 
did more for the general abolition of the custom than 
any written treatise on the subject ever would have 
done alone. English and foreign jurists long delighted 
to honour the Common Law for its non-recognition of 
torture. But though torture was contrary to the Com- 
mon Law, and even to Magna Charta, it was not con- 
trary to Prerogative ; and until the Commonwealth it 
was used as matter of course in all grave accusations 
at the mere discretion of the monarch and Privy 
Council.^ Therefore Beccaria pointed to England as 
a country which did not use torture with more justice 
than Grotius had done, who, when the rack was still 
in use amongst us, quoted England as a proof that 
people might safely live without torture. 

It is of interest to trace some of the practical 
results which followed Beccaria's treatise during the 
thirty years that he lived after its publication ; that 
is, from the year 1764 to 1794. 

The country in which the first attempt was made 
to apply his principles to practice was Russia, where 
Catharine IL was anxious to establish a uniform 

^ Jardine's Readit^ on Torturt* 



BECC ARIA'S INFLUENCE ON LEGISLA TION. 33 

penal code, based on the liberal ideas of the time, 
which then found more favour in St Petersburg than 
they did at Paris. For this purpose in 1767 she 
summoned to Moscow from all the provinces of 
Russia those 652 deputies who formed the nearest 
approach in the history of that country to a Russian 
Parliament. In the instructions that were read to 
this assembly, as the basis for the proposed codifica- 
tion of the laws, the principles propounded were 
couched not only in the spirit but often in the very 
words of the author of the ' Crimes and Punishments.' 
The following are examples : — 

Laws should only be considered as a means of conduct- 
ing mankind to the greatest happiness. 

It is incomparably better to prevent crimes than to 
punish them. 

The aim of punishment is not to torment sensitive 
beings. 

All punishment is unjust that is unnecessary to the 
maintenance of public safety. 

In methods of trial the use of torture is contrary to 
sound reason. Humanity cries out against the practice and 
insists on its abolition. 

Judgment must be nothing but the precise text of the 
law, and the office of the judge is only to pronounce whether 
the action is contrary or conformable to it. 

In the ordinary state of society the death of a citizen 
is neither useful nor necessary. 

The following especially is from Beccaria : — 

Would you prevent crimes, contrive that the laws 

D 



34 BECC ARIA'S INFLUENCE ON LEGISLATION. 

favour less different orders of citizens than each citizen in 
particular. Let men fear the laws and nothing but the 
laws. Would you prevent crimes, provide that reason and 
knowledge be more and more diffused. To conclude : the 
surest but most difficult method of making men better is by 
perfecting education.* 

Although these instructions were not so much laws 
as suggestions of laws, it is obvious what their effect 
must have been when published and diffused through- 
out Russia. That they were translated into Latin, 
German, French, and Italian proves the interest that 
was taken in Europe by this first attempt to apply 
the maxims of philosophy to practical government. 

In France Beccaria's book became widely popular, 
and many writers helped to propagate his ideas, such 
as Servan, Brissot, Lacretelle, and Pastoret. Lacre- 
telle attributes the whole impulse of criminal law reform 
to Beccaria, while regretting that Montesquieu had not 
said enough to attract general attention to the subject 
His book is said to have so changed the spirit of the 
old French criminal tribunals, that, ten years before 
the Revolution, they bore no resemblance to their 
former selves. All the younger magistrates gave 
their judgments more according to the principles of 
Beccaria than according to the text of the law.* 

1 Tooke's Catharine //., 441-8. Rambaud*s jRussie, 476. 'Dans 
rinstruction pour la confection du nouveau Code, Catharine II., suivant 
sa propre expression, avail j^i/U les philosophes d*Occident, mais sur- 
tout Montesquieu et Beccaria.' 

* Morellet, MJmoires, i. 165. 



BECC ARIA'S INFLUENCE ON LEGISLATION. 35 

The result of the agitation appeared in the Royal Or- 
dinances of 1780 and 1788, directed to the diminution 
of torture the only reforms which preceded the Revo- 
lution. It is said that the last time anyone was tor- 
tured in France was in the year 1788, the last year 
of the ancien rigime. At the very beginning of the 
Revolution more than a hundred different offences 
ceased to incur the penalty of death. 

The most successful adoption of Beccaria's 
principles of punishment occurred in Tuscany, under 
the Grand Duke Leopold. When he ascended the 
ducal throne, the Tuscans were the most abandoned 
people of all Italy. Robberies and murders were 
none the less frequent for all the gallows, wheels, and 
tortures which were employed to repress them. But 
Leopold in 1786 resolved to try Beccaria's plan, for 
which purpose he published a code, proportioning 
punishments to crimes, abolishing mutilation and 
torture, reducing the number of acts of treason, 
lessening confiscations, destroying the right of asylum, 
and above all abolishing capital punishment even for 
murder. The result was, says a contemporary, that 
Tuscany, from having been the land of the greatest 
crimes and villanies, became ' the best ordered State 
of Europe.' ^ During twenty years only five murders 
were committed in Tuscany, whilst at Rome, where 
death continued to be inflicted with great pomp, as 

* General C Lee's Memoirs, 
D z 




36 BECC ARIA'S INFLUENCE ON LEGISLATION. 

many as sixty were committed within the space of 
three months.^ 

Torture was definitely and totally abolished in 
Portugal in 1776, in Sweden in 1786,* and in Austria 
in 1789. In the latter country, indeed, it had been 
abolished by Maria Theresa sixteen years before in 
her German and Polish provinces ; and the Penal Code 
of Joseph II., published in 1785, was an additional tri- 
bute to the cause of reform. Secret orders were even 
given to the tribunals to substitute other punishments 
for hanging, yet so that the general public should be 
unaware of the change. There was the greatest 
anxiety that it should not be thought that this change 
was out of any deference for Beccaria or his school. 
'In the abolition of capital punishment,' said Kaunitz, 
* his Majesty pays no regard at all to the principles 
of modern philosophers, who, in affecting a horror of 
bloodshed, assert that primitive justice has no right to 
take from a man that life which Nature only can give 
him. Our sovereign has only consulted his own con- 
viction, that the punishment he wishes substituted 
for the capital penalty is more likely to be felt by 
reason of its duration, and therefore better fitted to 
inspire malefactors with terror.' 

> This fact rests on the authority of a gentleman of Pisa, who told it 
to Dr. Rush, the so-called * American iEsculapius,* who wrote against 
capital punishment towards the end of the last century. 

» By Gustavus III. It had, however, been discontinued long before, 
as Beccaria speaks of it as non-existent when he wrote. 



BECC ARIA'S INFLUENCE ON LEGISLATION. 37 

Nor was it only in Europe that Beccaria's influence 
thus prevailed, for as soon as the American Colonies 
had shaken off their English connection they began 
to reform their penal laws. When the Revolution 
began there were in Pennsylvania nearly twenty 
crimes punishable by death, and within eighteen 
years of its close the penal code was thoroughly trans- 
formed, it being ordained in 1794 that no crime 
should any longer be capital but murder in the first 
d^^ee. It is true that this was but a return to the 
principles adopted by Penn on the settlement of the 
colony, but Penn's penal code was annulled by Queen 
Anne, and the English Government insisted on a strict 
adherence to the charter from Charles IL, which en- 
joined the retention of the Statute and the Common 
Law of England. When, therefore, the new Constitu- 
tion was formed i;i 1776, the arguments of Beccaria 
gave fresh life to the memories of Penn.^ 

Thus before his death Beccaria saw torture almost 
entirely abolished in Europe, and a general tendency 
spreading to follow the spirit of the changes he advo- 
cated in other details of criminal law. Probably no 
other theorist ever lived to witness so complete an 
adoption of his principles in practice, or so thorough 
a transformation of the system he attacked. It is 
possible that he but gave body and voice to ideas of 
change already widely prevalent in his time ; but the 

» Turnbull*s Visit to Philadelphia Prism, 1797- 



"38 BECCARIA'S INFLUENCE ON LEGISLATION^ 

merit of a man belongs none the less to himself, who 
changes the instability of public opinion into an active 
and solid force, and who gives distinct expression to 
the longings vaguely felt by a multitude. 

But if the interest of Beccaria's chapter on Torture 
is now merely historical, an interest that is actual still 
attaches to his advocacy of the total abolition of 
capital punishment, this being the cause with which 
his name is most generally associated, and for which 
it is likely to be longest remembered. Previous 
writers, like Montaigne, if they deprecated the excess 
or severity of the death penalty, never thought of 
urging that it should be abolished altogether. 

There is an apparent discrepancy in Beccaria's 
first condemning death as too severe a punishment 
and then recommending lifelong servitude as one of 
more deterrent power ; but Beccaria would have said 
that the greater certainty of the latter more than 
compensated for the greater severity of the other. As 
regards the relative power of the two punishments, 
it probably varies in different individuals, some men 
having a greater dread of the one, and some of the 
other. The popular theory certainly goes too far, 
when it assumes that all men have a greater dread of 
the gallows than of anything else. When George 
III. once granted a pardon to the female convicts 
in Newgate on condition of their transportation to 
New South Wales, though seventeen of them ac- 



BECC ARIA'S INFLUENCE ON LEGISLA TION 39 

cepted the offer, there were yet six who preferred 
death to a removal from their native country. It is 
also stated by Howard that in Denmark the punish- 
ment in cases of infanticide, namely, imprisonment 
for life, with labour and an annual whipping on the 
place of the crime, was ' dreaded more than death,' 
which it superseded as a punishment. 

It is, however, probable that the frequency of any 
crime bears little or no relation to the punishment 
affixed to it. Every criminal begins a new career, in 
which he thinks less of the nature of his punishment 
than of his chances of eluding it. Neither tradition 
nor example count with him for much in his balance 
of the chances in his own favour. The law can never 
be so certain in its execution as it is uncertain in its 
application, and it is the examples of impunity, not of 
punishment, to which men turn when they violate the 
law. So that whether the punishment for murder be 
an excruciating death, as in ancient Rome, or a mere 
fine, as in ancient England, the motives for escape are 
always the same, the means to effect it are always 
the same, and the belief in his power to effect it is 
correspondingly powerful in every criminal guilty of 
homicide. 

Even if we assume that death is absolutely the 
severest penalty devisable by the law, and that as a 
punishment for murder it is not too severe, it remains 
certain, that, relatively to the circumstances of a trial 



40 BECCARIA'S INFLUENCE ON LEGISLA TION. 

for murder, to the reluctance of judges or juries to pass 
an irretrievable sentence, to their fear of error, to 
their conscientious regard for human life, it is really a 
much less terrible danger for a malefactor to face than a 
penalty which would justify fewer hopes of impunity. 

Nor are such scruples to convict unreasonable, 
when we consider the number who on apparently 
conclusive evidence have been falsely and irrevocably 
condemned to death. Playgoers who have seen * The 
Lyons Mail ' will remember how barely Lesurques, the 
Parisian gentleman, escaped punishment for the guilt 
of Dubosc, the robber and murderer. But the moral 
of the story is lost in the play, for Lesurques actually 
was executed for the crime of Dubosc, by reason of 
the strong resemblance he bore to him, the latter only 
receiving the due reward for his crimes after the inno- 
cent man had died as a common murderer on the scaf- 
fold. Then there are cases in which, as in the fanious 
case of Calas, some one having committed suicide, 
some one else is executed as the murderer. That 
dead men tell no tales is as true of men hung as of 
men murdered, and the innocence of an executed 
man may be proved long afterwards or not at all. 

Where there is no capital punishment, as in 
Michigan, a man's innocence may be discovered sub- 
sequently to conviction, and justice done to him for 
the error of the law. Such a case actually happened 
not long ago in Michigan, where a prisoner's innocence 



BECC ARIA'S INFLUENCE ON LEGISLATION, 41 

was clearly proved after ten years' imprisonment. 
Where capital punishment exists, there is no such 
hope ; nor is there any remedy if, as in the case of 
Lewis, who was hung in 1831, another man thirty- 
three years afterwards confesses himself the murderer. 
It is impossible to preclude all chances of such errors 
of justice. Illustrative of this is the story of the 
church organist near Kieff, who murdered a farmer 
with -a pistol he stole from a priest After his crime 
he placed the pistol in the sacristy, and then, when he 
had prevented the priest from giving evidence against 
him by the act of confession, went and denounced the 
priest as the culprit The priest, in spite of his protes- 
tations of innocence, was sentenced to hard labour for 
life ; and when, twenty years afterwards, the organist 
confessed his guilt on his deathbed, and the priest's 
liberation was applied for, it was found that he had 
died only a few months before.^ 

That the scruple to convict diminishes the cer- 
tainty of punishment, and therefore raises hopes of 
impunity, is illustrated by the case of two American 
brothers who, desirous to perpetrate a murder, waited 
till their victim had left their State, in which capital 
punishment had been abolished, and had betaken 
himself to a State which still retained it, before they 
ventured to execute their criminal intention. That 
such reluctance to convict is often most injurious to 

* Timesy March i, 1880. 



42 BECCARIA^S INFLUENCE ON LEGISLATION. 

the public is proved by the case of a woman at 
Chelmsford who some years ago was acquitted, in 
spite of strong evidence, on a chaise of poisoning, 
and who, before her guilt was finally proved, lived to 
poison several other persons who would otherwise 
have escaped hex arts.^ 

Such considerations as these will, perhaps, lead 
some day to the abolition of capital punishment. 
The final test of all punishment is its efficiency, not 
its humanity. There is often more inhumanity in a 
long sentence of penal servitude than in a capital 
sentence, for the majority of murderers deserve as 
little mercy as they get. The many offences which 
have ceased to be capital in English law yielded less 
to a sense of the inhumanity of the punishment as 
related to the crime than to the experience that such 
a punishment led to almost total impunity. The 
bankers, for instance, who petitioned Parliament to 
abolish capital punishment for forgery, did so, as 
they said, because they found by experience that the 
infliction of death, or the possibility of its infliction, 
prevented the prosecution, the conviction, and the 
punishment of the criminal ; therefore they begged 
for *that protection for their property which they 
would derive from a more lenient law.' 

* For most of the above facts the writer is indebted to the papers 
published by the Howard Association, kindly sent to him by the 
Secretary, Mr. Tallack. 



BECC ARIA'S INFLUENCE ON LEGISLATION. 43 

For the same reason it is of little avail to call in 
question, as Beccaria does, the right of society to 
inflict death as a punishment. There may be a 
distinction between the right of society and its 
might, but it is one of little comfort to the man 
who incurs its resentment A man in a dungeon 
does better to amuse himself with spiders and 
cobwebs than with reflections on the encroachment 
of the law upon his liberty, or with theories about the 
rights of government. Whenever society has ceased 
to exercise any of its powers against individuals, 
it has not been from the acceptance of any new 
doctrine as to its rights, but from more enlightened 
views as to its real interests, and a cultivated dislike 
of cruelty and oppression. 

When Beccaria wrote against capital punishment, 
one great argument against its abolition was its 
practical universality. It had been abolished in an- 
cient Egypt by king Sabaco,^ in the best period of 
the Roman Republics by the Porcian law, and in the 
time of the Roman Empire by Calo-Johannes.^ But 
these cases were too remote from modern times to 
lend much weight to the general argument. At that 
time Russia alone of all the countries in the world 

* Diodorus Siculus, i. 65 : hnX ykp rod Baofdrov robs icoTo5iica- 
0'$4vTas iivdyicaC^ \tirovpyf7v raus trSXeai iei€fi4vovs. 

• Gibbon, c. 48 : * During his government of twenty-five years 
the penalty of death was abolished in the Roman Empire.* A.D. 
1118-1143. 



44 BECC ARIA'S INFLUENCE ON LEGISLATION 

had, from the accession of the Empress Elizabeth, 
afforded a practical example of the fact, that the 
general security of life is not diminished by the with- 
drawal of the protection of capital punishment. But 
since that time this truth has become less and less a 
theory or speculation, and it now rests on the positive 
experience of no inconsiderable portion of the world. 
In Tuscany, Holland, Portugal, Russia, Roumania, 
Saxony, Prussia, Belgium, and in ten of the United 
States of America, the death penalty has either been 
abolished or discontinued ; and can it be thought that 
the people of those countries are so indifferent to the 
safety of their lives as to be content with a less effi- 
cient legal protection than is vouchsafed in countries 
where the protection is death ? 

The opponents of capital punishment may fairly, 
therefore, draw an argument in their favour from the 
fact that so many parts of the world have found it 
not incompatible with the general security of life to 
erase the death penalty from their list of deterrent 
agencies. It is better to rely on so plain a fact than 
on statistics which, like two-edged weapons, often cut 
both ways. The frequency of executions in one 
country and their total absence in another may 
severally coexist with great numerical equality in 
the number of murders committed in each. It is 
always better, therefore, to look for some other cause 
for a given number of murders than the kind of 
punishment directed to their repression. They may 



BECC ARIA'S INFLUENCE ON LEGISLATION. 45 

depend on a thousand other things, which it is diffi- 
cult to ascertain or eliminate. Thus both in Bavaria, 
where capital punishment has been retained, and in 
Switzerland, where it had been abolished in 1874, 
murders have increased greatly in recent years ; and 
this fact has, with great probability, been attributed 
to the influence of bad habits contracted during the 
Franco-German war. 

Capital punishment being less general in the world 
now than torture was when Beccaria wrote, it seems to 
be a fair logical inference that it is already far advanced 
towards its total disappearance. For the same argu- 
ment which Voltaire applied in the case of torture 
cannot fail sooner or later to be applied to capital 
punishment. ' If,' he says, * there were but one nation in 
the world which had abolished the use of torture ; and 
if in that nation crimes were no more frequent than 
in others, ... its example would be surely sufficient for 
the rest of the world. England alone might instruct 
all other nations in this particular ; but England is not 
the only^nation. Torture has been abolished in other 
countries, and with success ; the question,. therefore, is 
decided.' If in this argument we read capital punish- 
ment instead of torture, murders instead of crimes, 
and Portugal instead of England, we shall best appre- 
ciate that which is after all the strongest argument 
against capital punishment, namely, that it has been 
proved unnecessary for its professed object in so many 
countries that it might safely be relinquished in all. 



46 



CHAPTER III. 

THE INFLUENCE OF BECCARIA IN ENGLAND. 

Whatever improvement our penal laws have under- 
gone in the last hundred years is due primarily to 
Beccaria, and to an extent that has not always been 
recognised. Lord Mansfield is said never to have 
mentioned his name without a sign of respect. 
Romilly referred to him in the very first speech he 
delivered in the House of Commons on the subject of 
law reform. And there is no English writer of that 
day who, in treating of the criminal law, does not 
refer to Beccaria. 

Even the idea of public utility as the final test and 
standard of morality is derived from Beccaria, and 
the famous expression, ' the greatest happiness of the 
greatest number,* occurs, in capital letters, in the very 
first page of the ' Delitti e delle Pene.' ^ Bentham 
himself fully acknowledged this. * Priestley was the 
first,* he says, 'unless it was Beccaria, who taught 
my lips to pronounce this sacred truth: that the 

1 Beccaria doubtless got the expression from Helvetius, who used it 
in his VEsprit, i. 228, 291. 



INFLUENCE OF BECCARIA IN ENGLAND. 47 

greatest happiness of the greatest number is the 
foundation of morals and happiness/ And with 
reference to his idea of the measurable value of dif- 
ferent pains and pleasures, he says : * It was from 
Beccaria's little treatise on Crimes and Punishments 
that I drew, as I well remember, the first hint of this 
principle, by which the precision and clearness and 
incontestableness of mathematical calculations are 
introduced for the first time into the field of morals/ 

English philosophy and legislation, therefore, owe 
enough to Beccaria for his treatise never to be for- 
gotten among us. Standing, as it does, in reference 
to law as Bacon's * Novum Organon * to science, or 
Descartes' * Principia ' to philosophy, and representing 
a return to first principles and rejection of mere pre- 
cedent in the matter of penal laws, it will never fail 
to gratify those who, with little admiration for law in 
the concrete, can yet find pleasure in studying it in 
the abstract Most men will turn readily from a 
system built up, as our own is, of unintelligible dis- 
tinctions, and based on authority rather than on ex- 
perience, to a system where no distinctions exist save 
those which are derived from the nature of things and 
are founded on the real differences that distinguish 
the moral actions of mankind. 

The first trace of Beccaria's influence in England 
appeared in the first edition of Blackstone's Com- 
mentaries, of which the book on the Criminal Laws 



48 INFLUENCE OF BECCARTA IN ENGLAND, 

was published the very next year after the appearance 
of the Italian treatise. That Blackstone was well 
acquainted with it is proved by his frequent reference 
to it in treating of crimes. From Beccaria he argues 
that the certainty of punishments is more effectual 
than their severity, and finds it absurd to apply the 
same punishment to crimes of different malignity. 
Blackstone was also the first professional lawyer to 
find fault with the frequency of capital punishment in 
England, and to point out as *a melancholy truth* 
the presence of i6o actions in the statute book which 
were felonies without benefit of clergy. 

But there was one great fallacy, pervading our 
whole criminal law, which Blackstone left undetected 
and untouched. TKis was, that the severity of punish- 
ment must be augmented in proportion to the increase 
of temptation, and that the measure of the guilt of 
a crime lay in the facility with which it might be 
committed. ' Among crimes of an equal malignity,' 
says Blackstone, ' those [deserve most punishment, as 
most injurious] which a man has the most frequent 
and easy opportunities of committing, which cannot 
so easily be guarded against as others, and which, 
therefore, the offender has the strongest inducement 
to commit' And on this principle he finds it reason- 
able, that, while the theft of a pocket-handkerchief 
should be a capital crime, the theft of a load of hay 
should only involve transportation. 



INFLUENCE OF B EC C ARIA IN ENGLAND. 49 

There was not an* anomaly in our old criminal 
practice which was not based on this theory — a theory 
which had, indeed, its precedent in the old Hebrew law 
that punished more severely a theft from a field than 
a theft from a* house ; and the first writer who protested 
against it was Eden, afterwards Lord Auckland, who 
in 1 77 1 published his 'Principles of Penal Law,' one 
of the best books ever written on the subject. The 
influence of Beccaria is apparent in Eden's work, not 
only by his direct reference to it, but by his spirit of 
declared opposition to the actual practice of the law. 
Two instances of its tendency will suffice. ' Impri- 
sonment, inflicted by law as a punishment, is not 
according to the principles of wise legislation. It 
sinks useful subjects into burthens on the community, 
and has always a bad effect on their morals ; nor 
can it communicate the benefit of example, being 
in its nature secluded from the eye of the people.' 
And again : ' Whatever exceeds simple death is 
mere cruelty. Every step beyond is a trace of an- 
cient barbarity, tending only to distract the attention 
of the spectators and to lessen the solemnity of the 
example. There is no such thing as vindictive jus- 
tice ; the idea is shocking.' 

Men of letters as a rule did not speak with this 
boldness, but in conscious opposition to professional 
and popular feeling expressed their doubts with a 
hesitation that was almost apologetic. So, for ex- 

£ 



50 INFLUENCE OF BECCARIA IN ENGLAND. 

ample, Goldsmith could not * avoid even questioning 
the validity of that right which social combinations 
have assumed of capitally punishing offences of a 
slight nature/ ^ Strange, that in England such an ar- 
gument should ever have seemed a daring novelty, 
a thing to be said tentatively and with reserve ! 

Lord Kames attacked our criminal law in a still 
more indirect way, by tracing punishment historically 
to the revenge of individuals for their private injuries, 
and by extolling the excellence of the criminal law of 
the ancient Egyptians. They, he said, avoided capital 
punishments as much as possible, preferring others which 
equally prevented the recommission of crimes. Such 
punishments effected their end * with less harshness 
and severity than is found in the laws of any other 
nation, ancient or modern/ ^ 

Nothing could be more interesting than Lord 
Kames' account of the growth of criminal law, from 
the rude revenges of savages to the legal punishments 
of civilised States ; but it was probably intended by 
its author less as an historical treatise than as a veiled 
attack upon the penal system of his country. It is, 
therefore, a good illustration of the timidity of the 
Theoretical school against the overwhelming forces of 
the Practical school of law, which, of course, included 

* Vicar of Wakefieldy c. 27 ; and Citizen of the Worlds letter 79. 
Johnson was more outspoken in the Rambler, No. 114 (175 1), in which 
he advocated the restriction of capital punishment to cases of murder. 

' Ijoi^YixoLt^* Historical Law Tracts, Criminal Law, 1776. 



INFLUENCE OF BECCARIA IN ENGLAND, 51 

the great body of the legal profession ; and it is the 
first sign of an attempt to apply the experience of 
other countries and times to the improvement of our 
own jurisprudence. 

It certainly should moderate our reverence for 
ancestral wisdom to find even a man like Fielding, the 
novelist, speaking, in his Charge to the Grand Jury of 
Middlesex, of the pillory and the loss of a man's ears 
as * an extremely mild ' punishment for a bad case of 
libel, or declaring our punishments of that time to be 
' the mildest and most void of terror of any other in 
the known world.' Yet Fielding recognised several 
of the true principles of punishment. He attributed 
the increase of crime to the great abuse of pardons,, 
which, he said, had brought many more men to the 
gallows than they had saved from it He also ad- 
vocated the diminution of the number of executions,, 
their greater privacy and solemnity, whilst he recom- 
mended their following as. closely as possible on con- 
viction, that pity for the criminal might be lost ia 
detestation for his crime.* 

But that the humanity of the speculative school 
of law was not without some influence on public 
opinion, as well as to a certain extent a reflection 
of it, is proved by a few abortive attempts ia Parlia- 
ment to mitigate the severity of our penal code in tlie 
latter half of the last century. Even so early as. 1752 

* Enquiry into the Late Increase of, Robbers (l75^).' 

E.2 



52 INFLUENCE OF BECCARIA IN ENGLAND. 

the Commons agreed to commute the punishment of 
felony in certain cases to hard labour in the docks ; 
but the Lords refused their consent, as from that time 
onward for more than eighty years they regularly conr 
tinned to refuse it to all mitigation of the laws affecting 
crime. It must ever remain a matter of regret, that 
the rble of the House of Lords in the matter of criminal 
law reform should have continued from 1752 to 1832 
to be one of systematic and obstinate opposition to 
change, and an opposition which had no justification 
in the general level of national enlightenment 

The chief honour of the earliest attempt at law 
reform belongs to Sir William Meredith, who in 1770 
moved for a committee of inquiry into the state of 
the criminal laws. This committee proposed in its 
report of the following year the repeal of a few Acts 
which made certain offences capital ; and accordingly 
the Commons in 1772 agreed, that it should no longer 
be punishable as high treason to make an attempt on 
the life of a Privy Councillor, that desertion of officers 
or soldiers should no longer be capital, nor the be- 
longing to people who called themselves Egyptians. 
Some other proposals were negatived, such as a repeal 
of the hard law of James I. against infanticide; but 
the House of Lords refused their assent even to the 
slight changes passed by the Commons. ' It was an 
innovation, they said, and subversion of the law.* ^ 

• Meredith's speech of May 13, 1777, in Pari. Deb.^ xix. 239. 



INFLUENCE OF BECCARIA IN ENGLAND. 53 

It is no reproach to Meredith, Burke, and Fox that 
they ceased to waste their strength against Conser- 
vatism such as this. All hope of reform was out of 
the question ; and the most dreadful atrocities were 
suffered or defended. In 1777 a girl of 14 lay in 
Newgate under sentence to be burnt alive for false 
coinage, because some whitewashed farthings, that 
were to pass for sixpences, were found on her person ; 
and a reprieve only came just as the cart was ready 
to take her to the stake. Not till 1790 was the law 
abolished by which women were liable to be burnt 
publicly for high or petit treason.^ 

But whatever tendency might have been arising in 
theory or in practice about this time to mitigate the 
severity of our laws was destined to receive a dead 
check from the publication in 1784 and 1785 respec- 
tively of two books which deserve historical recollec- 
tion. The first was Madan's * Thoughts on Executive 
Justice,' in which the author, adopting Beccaria*s prin- 
ciple of the certainty of punishment as the best check 
on crime, advocated an unflinching carrying out of the 
laws as they stood. ' It was,' says Romilly, * a strong 
and vehement censure upon the judges and the minis- 
ters for their mode of administering the law, and fon 
the frequency of the pardons which they granted. It. 

was very much read, and certainly was followed by 
the sacrifice of many lives.* 

* Lecky's England^ i. 506. 



54 INFLUENCE OF BECCARIA IN ENGLAND, 

The year before its publication 51 malefactors 
were executed in London, the year after 97, whilst 
not long afterwards was seen the rare spectacle of 
nearly 20 criminals hung at a time. Romilly was 
so much shocked at what he considered the folly and 
inhumanity of Madan's book that he wrote a short 
tract of observations upon it, of which he sent a copy 
to each of the judges. But it is characteristic of the 
feeling of that time that only a hundred copies of his 
tract were sold. It was, however, from that time that 
Romilly began to make the criminal law his special 
study, so that to Madan indirectly our country owes 
the efforts of Romilly. 

The other book was from a man whom above all 
others our forefathers delighted to honour. This was 
Archdeacon Paley, who in 1785 published his 'Moral 
and Political Philosophy,' and dedicated it to the then 
Bishop of Carlisle. Nor is this fact of the dedication 
immaterial, for the said Bishop was the father of the 
future Lord Chief Justice EUenborough, who enjoys 
the melancholy fame of having been the invetferate 
and successful opponent of nearly every movement 
made in his time, in favour of the mitigation of our 
penal laws. The chapter on Crimes and Punish- 
ments in Paley and the speeches of Lord Ellen- 
borough on the subject in the House of. Lords are, 
in point of fact, the same thing; so that Paley's 
chapter is of distinct historical importance, as the 



INFLUENCE OF BECCARIA IN ENGLAND. 55 

chief cause of the obstruction of reform, and as the 
best expression of the philosophy of his day. If 
other countries adopted . Beccaria's principles more 
quickly than our own, it was simply that those prin- 
ciples found no opponents anywhere equal to Arch- 
deacon Paley and his pupil, Lord Ellenborough. 

Paley, of course, defended the thing he found 
established ; nor, considering the system he had to 
defend, did he state the case for it without ingenuity. 
He had, indeed, nothing to add to what Blackstone had 
said regarding punishment, namely, that it WcLs inflicted, 
not in proportion to the real guilt of an offence, but in 
proportion to its facility of commission and difficulty 
of detection. To steal from a shop was not more 
criminal than to steal from a house, but, as it was 
more difficult to detect, it was more severely pun- 
ished. Sheep, horses, and cloth on bleaching-grounds 
were more exposed to thieves than other kinds of 
property; therefore their theft required a stronger 
deterrent penalty, 

There was only one offence which Paley thought 
the English law punished too severely, and that was 
the offence of privately stealing from the person. In 
all other cases he defended the application of the 
capital penalty. It was, he thought, the peculiar 
merit of the English law that.it swept into the net 
every crime which under any possible circumstance 
might merit death, whilst it only singled out a few 



56 INFLUENCE OF BECCARIA IN ENGLAND, 

cases in each class of crime for actual punishment ; 
so that whilst few really suffered death, the dread 
and danger of it hung over the crimes of many. 
The law was not cruel, for it was never meant to be 
indiscriminately executed, but left a large margin for 
the exercise of mercy. 

Paley agreed with Beccaria that the certainty of 
punishment was of more consequence than its severity. 
For this reason he recommended * undeviating impar- 
tiality in carrying the laws into execution ; ' he blamed 
the 'weak timidity' of juries, leading them to be over- 
scrupulous about the certainty of their evidence, and 
protested against the maxim that it was better for ten 
guilty men to escape than for one innocent man to 
perish. A man who fell by a mistaken sentence 
might, he argued, be considered as falling for his 
country, because he was the victim of a system of 
laws which maintained the safety of the community. 

Such was the reasoning which for nearly half a 
century governed the course of English history, and 
which for all that time it was a heresy to dispute. 

Barbarous spectacles were, Paley thought, justly 
found fault with, as tending to demoralise public 
feeling. * But,' he continued, ' if a mode of execution 
could be devised which would augment the horror of 
the punishment, without offending or impairing the 
public sensibility by cruel or unseemly exhibitions of 
deaths it might add something to the efficacy of 



INFLUENCE OF BECCARIA IN ENGLAND, 57 

example ; and by being reserved for a few atrocious 
crimes might also enlarge the scale of punishment, an 
addition to which seems wanting, for as the matter 
remains at present you hang a malefactor for a simple 
robbery, and can do no more to the villain who has 
poisoned his father. Something of the sort we have 
been describing was the proposal, not long since 
suggested, of casting murderers into a den of wild 
beasts, where they would perish in a manner dreadful 
to the imagination, yet concealed from the view/ It 
is interesting after this to learn, that Paley thought 
torture properly exploded from * the mild and 
cautious system of penal jurisprudence established in 
this country,' and that (to do him justice) he urged 
private persons to be tender in prosecuting, out of 
regard for the difficulty of prisoners to obtain an 
honest means of livelihood after their discharge. 

Howard's book on the Lazarettos of Europe 
appeared four years after Paley's work. Although it 
did not deal directly with crimes, it indirectly treated 
of their connection with punishment. Howard was 
able to show that whilst in Middlesex alone 467 
persons had been executed in nine years, only six 
had been executed in Amsterdam ; that for a hundred 
years the average number of executions had been one 
a year at Utrecht and that for twenty-four years there 
had not even been one there. The inference therefore 
was that the diminution of punishment had a direct 



58 INFLUENCE OF B EC CARTA IN ENGLAND. 

effect in diminishing crime. Howard also advocated 
the restriction of capital punishment to cases of mur- 
der, arson, and burglary ; highwaymen, footpads, and 
habitual thieves should, he thought, end their days 
in a penitentiary rather than on the gallows. Even 
this was a bold proposal, in a state of society yet in 
bondage to Paley. 

Something, however, occurred more fatal to the 
reform of our penal laws than even the philosophy of 
Paley, and that was the French Revolution. Before 
1790 there had been 115 capital offences in France; 
so that to alter the criminal law in England was to 
follow a precedent of unpleasant auspices. Reform 
not unnaturally savoured of revolution, and especially 
a reform of the penal laws. In 1808 Romilly said 
he would advise anyone, who desired to realise the 
mischievous effects of the French Revolution in Eng- 
land to attempt some legislative reform on humane 
and liberal principles. With bitterness he tells the 
story of. a young nobleman, who, addressing him 
insolently at the bar of the House of Commons, 
informed him that he for his part was for hanging 
all criminals. Romilly observed that he supposed he 
meant punishments should be certain and the laws 
executed, whatever they were. 'No, no,' was the 
reply, * it isn't that. There is no good done by 
mercy. They only get worse : I would hang them 
all up at once.' And this represented the prevalent 



INFLUENCE OF BECCARIA IN ENGLAND, 59 

opinion. Windham, in a speech against the Shop- 
lifting Bill, inquired, * Had not the French Revolution 
begun with the abolition of capital punishment in every 
case ? . . . Was such a system as . this was to be set 
up without consideration against that of Dr. Paley ! ' * 

Romilly's first idea with respect to the reform of 
the criminal law was a sufficiently humble one. It 
was nothing more than to raise the amount of the 
value of the property, the theft of which should 
expose a man to death. Twelvepence, as fixed by 
the statute of Elizabeth, originally signified a much 
greater theft than it had come to signify after a lapse 
of two centuries. Romilly had at first no idea of 
removing the death penalty for theft ; his only hope 
was to get it affixed to a graver theft than the lar- 
ceny of a shilling. Yet even so he could not bring 
himself to consult with the judges on the subject of 
his intended bill, for ' he had not the least hope they 
would approve of the measure.' 

It was by the advice of Scarlett, Lord Abinger, 
that he ventured to aim at the repeal of all statutes 
punishing mere theft with death ; but, deeming it 
hopeless to urge their abolition all at once, he re- 
solved to begin with that famous statute of Elizabeth 
which made it a capital crime to steal a handkerchief 
or anything else from the person of another which 
was of the value of a shilling. His bill to effect this 

' Speech, May u, 1810. 



6o INFLUENCE OF BECCARIA IN ENGLAND. 

passed both Houses the same year it was introduced 
(1808), in spite of the strong opposition of the great 
legal dignitaries in either House. The statute was 
based, said Judge Burton, on the experience of two 
and a half centuries. The alternative punishment of 
transportation for seven years, said the Attorney- 
General, would be too short ; it should be for more 
years than seven, if not for life. If any change of 
punishment wer^ necessary, said Lord EUenborough, 
it should be transportation for life. 

Such was legal opinion generally as expressed 
by its ablest representatives with respect to the due 
punishment for pocket-picking not a hundred years 
ago. It is easy now to smile at such errors, and, at 
the barren waste of wisdom spent in their defence, 
but what weight after that can be attached, on 
subjects of the general policy of the law, to the 
opinion of its chief professors } Can it be too much 
regretted that Lord Chief Justice EUenborough should 
have sacrificed to his own authority, whilst alive, 
the authority of all judges ever destined to succeed 
him } 

The success which attended Romilly's Privately 
Stealing Bill and the failure which attended almost 
all his other efforts was probably due to the fact that 
larceny from the. person without violence was, as has 
been said, the one single kind of offence which had 
Paley s sanction for ceasing to be capital. But the 



INFLUENCE OF BECCARIA IN ENGLAND 6i 

very success of his first bill was the chief cause of the 
failure of his subsequent ones. For, capital punish- 
ment having been removed for mere pilfering, pro- 
secutions became more frequent, and the opponents 
of reform were thus able to declare that an increase 
of theft had been the direct consequence of the aboli- 
tion of the capital penalty. It was in vain to point 
out, that the apparent increase of theft was due to the 
greater readiness of individuals to prosecute and of 
juries to convict, when a verdict of guilt no longer 
involved death as the consequence. 

Romilly also injured his cause by a pamphlet on 
the criminal law, in which he criticised severely the 
doctrines of Paley. So strongly was this resented, 
that in 1810 his bill to abolish capital punishment 
for stealing forty shillings from a dwelling-house did 
not even pass the Commons, being generally opposed, 
as it was by Windham, because the maintenance of 
Paley's reputation was regarded as a great object of 
national concern.* That is to say, men voted not so 
much against the bill as against the author of a 
heresy against Paley. 

In those days to steal five shillings* worth of 
goods from a shop was a capital offence, and Paley 
had explained the philosophy of the punishment It 
would be tedious to follow the course of Romilly's 
bill against this law, called the Shoplifting Act, 

' Romilly's Memoirs^ ii. 322. 







62 INFLUENCE OF BECCARIA IN ENGLAND. 

through the details of its history. Suffice it to say 
that it passed the Commons in 1810, 1811, 1813, 
1 8 16, but was regularly thrown out by the Lords, 
and only definitely became law many years later. 
But though the debates on the subject no longer 
possess the vivid interest that once belonged to 
them, and are best left to the oblivion that enshrouds 
them, it is instructive to take just one sample of the 
eloquence and arguments, that once led Lords and 
Bishops captive and expressed the highest legal 
wisdom obtainable in England. 

Lord Ellenborough, on the last day but one of 
May 1 8 10, appealed to their lordships to pause, 
before they passed the Shoplifting Bill and gave 
their assent to the repeal of a law which had so long 
been held necessary for the security of the public. 
No one, he insisted, was more disposed than himself 
to the exercise of clemency, but there was not the 
slightest ground for the insinuations of cruelty that 
had been cast on the administration of the law. If 
shoplifting did not require the penalty of death, the 
same rule would have to apply to horse- and sheep- 
stealing ; and, in spite of all that was said in favour 
of this speculative humanity, they must all agree, 
that prevention of crime should be the chief object 
of the law, and that terror alone could prevent the 
crime in question. Those who were thus speculating 
in modern legislation urged that punishment should 



INFLUENCE OF BECCARIA IN ENGLAND, 63 

be certain and proportionate ; but he could satisfy the 
House that any attempt to apply a punishment in 

exact conformity to the offence would be perfectly 

If 

ludicrous. He had consulted with the other judges, 
and they were unanimously of opinion that it would 
not be expedient to remit this part of the severity 
of the criminal law.^ He therefore entreated them 
to pause. 

Need it be said that the House of Lords paused, 
as they were entreated to do, and that they paused 
and paused again, in a manner more suggestive of 
the full stop than the comma, generally out of defer- 
ence to the same authority ? Romilly was indignant 
that so many prelates voted against his bills ; but 
could they have done otherwise, when the best legal 
authorities in England urged that it would be fatal 
to vote for them t — when they were gravely told that 
if a certain bill passed, they would not know whether 
they stood on their heads or on their feet } 

Lord Ellenborough was so hard upon * speculative 
humanity,' as opposed to real practical common sense, 
that the speculative school are never likely to forget 
him. But they owe too much to him not to forgive 
him ; since he is the standing proof, that in matters 
of the general policy of the law professional opinion 
is a less trustworthy guide than popular sentiment, 

* Hansard, and Campbell's Chief Justices^ iii. 233. The arguments 
are almost Paley's word for word. 



64 INFLUENCE OF BECCARIA IN ENGLAND. 

and that in questions of law reform it is best to 
neglect the fossil-wisdom of forgotten judges, and to 
seek the opinion of Jones round the corner as readily 
as that of Jones upon the Bench. 

A strong feeling against the pillory was aroused by 
the sentence passed against Lord Cochrane in 1814, 
by which, for supposed complicity in a plot to raise 
the price of the Funds, he was condemned to a year's 
imprisonment, to a fine of 1000/., and to stand in the 
pillory. A bill for the abolition of the pillory accord- 
ingly pa3sed the Commons the very next year, but 
Lord Ellenborough succeeded again in bringing the 
Upper House to a pause : the pillory forsooth was as 
old as 1269 ; it was spoken of by the old historians ; 
it was not confined to this country, for Du Cange 
spoke of it on the Continent. For these reasons the 
pillory remained a legal punishment down to the first 
year of the present reign. 

Yet Lord Ellenborough was one of the best judges 
known to English history ; he was, according to his 
biographer, a man * of gigantic intellect,' and one of 
the best classical scholars of his day ; and if he erred, 
it was with all honesty and goodness of purpose. The 
same must be said of Lord Chief Justice Tenterden's 
opposition to any change in the law of forgery. His 
great merits too as a judge are matter of history, yet 
when the Commons had passed the bill for the aboli- 
ion of capital punishment for forgery, Lord Tenterdea 



INFLUENCE OF BECCARIA IN ENGLAND. 65 

assured the House of Lords that they could not 
' without great danger take away the punishment of 
death/ ' When it was recollected how many thousand 
pounds, and even tens of thousands, might be ab- 
stracted from a man by a deep-laid scheme of forgery, 
he thought that this crime ought to be visited with 
the utmost extent of punishment which the law then 
wisely allowed/ The House of Lords again paused 
in submission to judicial authority. 

Sir James Mackintosh, who succeeded Romilly 
as law reformer, in 1820 introduced with success six 
penal reform bills into the House of Commons ; but 
the Lords assented to none of them that were of 
any practical importance to the country. They 
agreed, indeed, that it should no longer be a capital 
offence for an Egyptian to reside one year in the 
country, or for a man to be found disguised in the 
Mint, or to injure Westminster Bridge ; but they did 
not agree to remove the capital penalty for such 
offences as wounding cattle, destroying trees, break- 
ing down the banks of rivers, or sending threatening 
letters. It was feared that if the punishment were 
mitigated, the whole of Lincolnshire might be sub- 
merged, whole forests cut down, and whole herds 
destroyed. As to the Shoplifting Bill, they would 
not let death be abolished for stealing in shops alto- 
gether, but only where the value of the theft was 
under 10/. That seemed the limit of safe concession. 

F 



66 INFLUENCE OF B EC C ARIA IN ENGLAND. 

Sir Robert Peel, who was the first Ministerial law 
reformer, succeeded in getting the death penalty- 
repealed for several crimes which were practically 
obsolete, but forty kinds of forgery alone still re- 
mained capital offences. 

So great, however, did the changes appear to be, 
that Sir James Mackintosh declared, towards the 
close of his life, that it was as if he had lived in two 
different countries, such was the contrast between the 
past and the present. Yet Sir James died in the very- 
year that the first Reform Bill passed, and it was not 
till after that event that any really great progress 
was made towards ameliorating the penal laws. 

It is well known that Lord Tenterden refused ever 
to sit again in the House of Lords if the Reform Bill 
became law, and that he predicted that that measure 
would, amount to the political extinction of the Upper 
House. As regards the history of our criminal law 
Lord Tenterden was right, for the period of long 
pauses had passed away, and rapid changes were 
made with but short intervals of breathing-time. 
From the year the Reform Bill passed the school of 
Beccaria and Bentham achieved rapid successes in 
England. In 1832 it ceased to be capital to steal a 
horse or a sheep, in 1833 to break into a house, in 

1834 to return prematurely from transportation, in 

1835 to commit sacrilege or to steal a letter. But 



INFLUENCE OF EEC CARTA IN ENGLAND, 67 

even till 1837 there were still 37 capital offences on 
the statute-book ; and now there are only two, murder 
and treason. Hanging in chains was abolished in 
1834 ; the pillory was wholly abolished in 1837 ; and 
the same year Ewart, after many years* struggle, 
obtained for prisoners on trial for felony the right 
(still merely a nominal one) ^ of being defended by 
counsel. 

Thus it has come about that, after steady oppo- 
sition and fierce conflict, English law finds itself at 
the very point which Johnson and Goldsmith had 
attained a hundred years before ; so true is it, as 
Beccaria has said, that the enlightenment of a nation 
is always a century in advance of its practice. The 
victory has conclusively been with the ultra-philo- 
sophers, as they were once called, with the speculative 
humanitarians, for whom good Lord Ellenborough 
had so honest a contempt. Paley's philosophy has 
long since been forgotten, and if it affords any lesson 
at all, it lies chiefly in a comparison between his 
gloomy predictions and the actual results of the 
changes he deprecated. The practical and profes- 
sional school of law has yielded on all the most 
important points to the dissolving influence of Bec- 
caria's treatise ; and the growing demand for in- 
creasing the security of human life by the institution 

' Stephen's ^»^/;^^ Criminal Law^ 156, 178. 

F 2 



68 INFLUENCE OF B EC C ARIA IN ENGLAND, 

of a penalty, more effective because more certain, 
than that at present in force, points to the still 
further triumph of Beccaria's principles, likely 
before long to mark the progress of his influence in 
England. 



69 



CHAPTER IV. 

THE PROBLEMS OF PENOLOGY. 

If we would bring to the study of Beccaria's treatise 
the same disposition of mind with which he wrote it, 
we must enter upon the subject with the freest pos- 
sible spirit of inquiry, and with a spirit of doubtfulness, 
undeterred in its research by authority however vene- 
rable, by custom however extended, or by time how- 
ever long. It has been from too great reverence for the 
wisdom of antiquity that men in all ages have con- 
signed their lives and properties to the limited learn- 
ing and slight experience of generations which only 
lived for themselves and had no thought of binding 
posterity in the rules they thought suitable to their 
own times. Beccaria sounded the first note of that 
appeal from custom to reason in the dominion of law 
which has been, perhaps, the brightest feature in the 
history of modern times, and is still transforming the 
institutions of all countries. 

The object, therefore, of this chapter is chiefly 



70 PROBLEMS OF PENOLOGY. 

negative, being none other than to raise such mistrust 
of mere custom, and so strong a sense of doubt, by the 
contradictions apparent in existing laws and theories, 
that the difficulties of their solution may tempt to 
some investigation of the principles on which they 
rest. 

That Penology is still only in its experimental 
stage as a science, in spite of the progress it has made 
in recent times, is clear from the changes that are so 
constantly being made in every department of our 
penal system. We no longer mutilate nor kill our 
criminals, as our ancestors did in the plenitude of 
their wisdom ; we have ceased to transport them, and 
our only study now is to teach them useful trades and 
laborious industry. Yet whether we shall better bring 
them to love labour by compulsory idleness or by 
compulsory work, whether short imprisonment or long 
is the most effective discipline, whether seclusion or 
association is least likely to demoralise them, these 
and similar questions have their answers in a quick- 
sand of uncertainty. This only may experience be 
said to have yet definitely proved, that very little 
relation exists in any country between the given 
quantity of crime and the quantity or severity oi 
punishment directed to its prevention. It has taken 
thousands of years to establish this truth, and even 
yet it is but partially recognised over the world. 

It would appear at first sight that there could be 



PROBLEMS OF PENOLOGY. 71 

little to say about crimes and punishments, so obvious 
and self-evident seem the relations that exist between 
them. Many people still believe in an innate sense 
of justice in mankind, sufficient always to prevent 
wide aberrations from equity. Is it, they might ask, 
conceivable that men should ever lose sight of the 
distinction between the punishment of guilt and the 
punishment of innocence ? — that they should ever 
punish one equally with the other } Yet there is no 
country in the world which in its past or present his- 
tory has not involved the relations of a criminal in 
the punishment inflicted on him ; and in savage 
countries generally it is still common to satisfy jus^ 
tice with vengeance on some blood-relation of »» 
malefactor who escapes from the punishment due to 
his crime. 

It would also seem to demand no great insight to 
perceive that a voluntary intention must be a uni- 
versal attribute of a criminal action. No one would 
think of punishing a man who in his sleep, killed 
another, although, if the injury to society be the 
measure of punishment, his crime is equivalent to 
intentional homicide. Yet at Athens an involuntary 
murderer was banished until he could, give satisfac- 
tion to the relatives of the deceased ; and in China, 
though the penal code generally separates inten- 
tional from accidental crimes, anyone who kills a 
near relation by accident or commits certain kinds 



72 PROBLEMS OF PENOLOGY. 

of arson by accident undergoes different degrees 
of banishment and a fixed number of bamboo 
strokes.^ 

Even inanimate objects or animals it has been 
thought through many ages reasonable to punish. 
In Athens an axe or stone that killed anyone by ac- 
cident was cast beyond the border ; and the English 
law was only repealed in the present reign which made 
a cartwheel, a tree, or a beast, that killed a man, 
forfeit to the State for the benefit of the poor. The 
Jewish law condemned an ox that gored anyone to 
death to be stoned, just as it condemned the human 
murderer. And in the middle ages pigs, horses, or 
oxen were not only tried judicially like men, with 
counsel on either side and witnesses, but they were 
hung on gallows like men, for the better deterrence 
of their kind in future.^ 

These customs had doubtless their defenders, and 
lefit the world not without a struggle. It must have 
cost some one, whosoever first questioned the wisdom 
of hanging animals or murdering a criminal's relations, 
as much ridicule as it cost Beccaria to question the 
efficacy of torture or the right of capital punishment. 
But the boldness of thought in that unknown reformer 
was probably lost sight of in the arrogance of his 

* Sir G. Staunton's Penal Code of China, 347, 416. 
^ See several instances in Baring Gould's Curiosities of Olden Times^ 
m the chapter on Queer Culprits. / 



PROBLEMS OF PENOLOGY. 73 

profanity, and he doubtless paid with his own neck 
for his folly in defending the pig*s. 

It may be said that all such absurdities are past ; 
that the Jews, the Athenians, the Chinese, the Euro- 
peans of the middle ages can scarcely be cited as 
reasonable beings ; that they had no rational theory 
of punishment, and that their errors have been long 
since discarded. But at least their example suggests 
that even in our own system there may be incon- 
sistencies and blemishes which custom and authority 
hide from our eyes. 

Penal laws are the expression of the moral senti- 
ments of mankind, and either are as variable as the 
other. In Holland it was once a capital offence to 
kill a stork, and in England to cut down a man's 
cherry-tree. For a Roman lady to drink wine was 
as heinous a sin as adultery, for either of which she 
incurred the extreme sentence of the law. In Athens 
idleness was for a long time punishable ; though to a 
Spartan an Athenian fined for idleness seemed to 
be punished for keeping up his dignity. In Mexico 
drunkenness was a graver crime than slander; for 
whilst the slanderer lost his ears or lips, the drunken 
man or woman was clubbed or stoned to death. 

But if penal laws thus express the wide variability 
of human morality, they also contribute to make 
actions moral or immoral according to the penalties 
by which they enforce or prevent them. For not 



74 PROBLEMS OF PENOLOGY, 

only does whatever is immoral tend to become penal, 
but anything can be made immoral by being first 
made penal ; and hence indifferent actions often remain 
immoral long after they have ceased to be actually 
punishable. Thus the Jews made Sabbath-breaking 
equally immoral with homicide or adultery, by affixing 
to each of them the same capital penalty ; and the 
former offence, though it no longer forms part of any 
criminal code,, has still as much moral force against 
it as many an offence directly punishable by the 
law. 

But perhaps the best illustrations of the tendency 
of actions to retain the infamy, attached to them by 
a past condition of fanatical punishments, are the 
cases, of suicide and child-killing. Could a Greek of 
the classical period, or a cultivated historian like 
Plutarch reappear on earth, nothing would strike him 
more vividly than the modern conception or recent 
treatment of these crimes. According to Plutarch, 
Lycurgus, the great Spartan lawgiver, met his death 
by voluntary starvation, from the persuasion that 
even the deaths of lawgivers should be of use to 
mankind, and serve, them with an example of virtue 
and greatness ; and Senecja held that it was the 
part of a wise man not to live as long as he could 
but as long as he ought With what astonishment, 
then, would not Plutarch or Seneca read of recent 
European punishments for suicide — of Lady Hales 



PROBLEMS OF PENOLOGY, 75 

losing the estate she was jointly possessed of with 
her husband, the Judge, because he drowned him- 
self; of the stake and the cross-roads ; of the English 
law which still regards suicide as murder, and con- 
demns one of two men who in a mutual attempt at 
self-destruction survives the other to the punishment 
of the ordinary murderer ! Is it possible, he would 
ask, that an action which was once regarded as 
among the noblest a man could perform, has really 
come to be looked upon with any other feeling than 
one of pity or a sad respect ? 

The case of infanticide suggests similar thoughts. 
When we remember that both Plato and Aristotle 
commended as a valuable social custom that which 
we treat as a crime ; when we recall the fact that the 
life of a Spartan infant depended on a committee of 
elders, who decided whether it should live or perish, 
we shall better appreciate the distance we have 
travelled, or, as some would say, the progress we 
have made, if we take up some English daily paper 
and read of some high-minded English judge sen- 
tencing, at least formally, some wretched woman to 
death, because, in order to save her child from starva- 
tion or herself from shame, she has released it from 
existence. Yet the feeling, of which such a sentence 
is the expression, is often extolled as one of the 
highest triumphs of civilisation ; and the laws, as if 
there were no difference between adult and infant 



76 PROBLEMS OF PENOLOGY. 

life, glory in protecting the weakness of a child by 
their merciless disregard for the weakness of its 
mother. 

But at least, it will be thought, we have by this 
time arrived at some principles about punishment 
which correspond with the eternal truths of equity. 
Is not Equality, for instance, one of the primary 
essentials of punishment? Does it not stand as a 
penal axiom with almost the sanction of a moral law 
that all men should suffer equally for equal crimes } 
Yet, if by equality be meant the same punishment, 
the same kind of labour, the same term of servitude, 
the same pecuniary fine — and this is the only thing it 
can mean — what more obvious than that the same 
punishment for rich and poor, for young and old, for 
strong and weak, for men and women, for educated 
and uneducated, will bring to the constitution of a 
penal code the utmost inequality the imagination can 
conceive? Beccaria insists that the law can do no 
more than assign the same extrinsic punishment to 
the same crime ; that is, the same punishment, regard- 
less of all other external considerations ; and he calls 
for the infliction of the same punishment on the 
nobleman as on the commoner. Let it be so ; but 
the same punishment is no longer an equal one ; 
and hence from this very demand for equality springs 
the demand for its very opposite, for what Bentham 
calls the equability of punishment ; that is, consider- 



PROBLEMS OF PENOLOGY, 77 

ation for the different circumstances of individual 
criminals. So that the same nominal punishment 
not being the same real one, equality of punishment 
appears to be a chimera, and the law, which pun- 
ishes, say, a distinguished officer less severely than 
it punishes a costermonger for the same crime, errs 
perhaps really less from actual equality than if it 
condemned both to precisely the same punishment 

Again, Proportion between crime and punishment 
seems to be another natural demand of equity. Yet 
it is evident that it is only approximately possible, 
and will vary in every age and country according to 
the prevalent notions of morality. Is imprisonment 
for a year, or imprisonment for life, or for how long, 
a fair and proportionate punishment for perjury? 
Who shall decide ? Shall we submit it to the opinion 
of the judges } But has not Romilly left on record 
the story of the two men tried by two different judges 
for stealing some chickens, who were sentenced re- 
spectively one to imprisonment for two months, and 
the other to transportation ? Shall we then give up all 
attempt at proportion and apply the same deterrent 
as equally efficacious against slight or grave offences ? 
Draco, when asked why he made death the punishment 
for most offences that were possible, is said to have 
replied, 'Small ones deserve it, and I can find no 
greater for the gravest.' The same reasoning was 
for a long time that of our own law ; and in Japan, 



78 PROBLEMS OF PENOLOGY, 

where every wrong act was one of disobedience to the 
Emperor, and accordingly of equal value, the same 
penalty of death for gambling, theft, or murder, 
obviated all difficulties with regard to a proportion 
which is easier to imagine than it is to define. 

Analogy between crime and punishment is another 
idea which, except in the case of death for death, has 
been relegated from the practice of most criminal 
laws. Yet the principle has in its favour the autho- 
rity of Moses, the authority of the whole world and 
of all time, that punishment should, if possible, re- 
semble the crime it punishes in kind ; so that a man 
who blinds another should be blinded himself, he who 
disfigures another be disfigured himself. Thus in the 
old-world mythology, Theseus and Hercules inflict on 
the evil powers they conquer the same cruelties their 
victims were famous for ; Termenus having his skull 
broken because with his own skull he broke the heads 
of others ; and Busiris, who sacrificed others, being 
himself sacrificed in his turn. Both Montesquieu and 
Beccaria also advocate analogy in punishment, and so 
does Bentham to some degree ; there being, indeed, 
few greater contrasts between the theories of the great 
English jurist and modern English practice than that 
the former should not have deprecated some suffering 
by burning as a penalty analogous to the crime of 
arson, and that he should have advised the transfix- 
ing of a forger's hand or of a calumniator's tongue 



PROBLEMS OF PENOLOGY, 79 

by an iron instrument before the public gaze as good 
and efficient punishments for forgery and slander. 

These are some of the difficulties of the subject, 
which teach us the necessity of constant open-minded- 
ness with regard to all ideas or practices connected 
with criminal law. But, would we further examine 
our established notions, we should consider a state- 
ment from Hobbes which goes to the very root of 
the theory of punishment. 

* In revenges or punishments,' says Hobbes, 
* men ought not to look at the greatness of the evil 
past, but the greatness of the good to follow, whereby 
we are forbidden to inflict punishment with any other 
design than for the correction of the offender and the 
admonition of others.' And over and over again the 
same thing has been said, till it has come to be a 
commonplace in the philosophy of law, that the ob- 
ject of punishment is to reform and deter. As was 
once said by a great legal authority, ' We do not hang 
you because you stole a horse, but that horses may 
not be stolen.'* Punishment by this theory is a 
means to an end, not an end in itself. 

Yet, supposing it were proved to-morrow that 
punishment fails entirely of the ends imputed to it ; 
that, for example, the greater number of crimes are 

' So Seneca, De Ira,, i. 16 : ' Nemo prudens punit quia peccatum 
est, sed ne peccetur. Revocari enim praeterita non possunt, futura 
prohibentur.' Compare iHd,^ ii. 31* and Plato, Laws, xi. 934 a. 



^^ 



80 PROELEMIS OF PEXQLOGY. 

committed hy criminals wlio iiavs been pmiished 
alread}' ; tliat for one chanry of a man s TeFarmHtian 
dming iiis pimisiiment liiere are a faimdned in feRiiiir 
of his deterioration ; and that tlie deterrem influence 
of liis pmiishment is akogelher removed by hk own 
descriptions of it ; siiall we suppose for a moment 
tliat society would cease to punish, on lie ^otmd 
that punishment attained none of its professed ends ? 
Would it say to the horse-stealer, ' Keep your horae, 
for nothing we can do to you can make you any 
better, nor deter others from trying to get horses in 
Ihe same way ? ' 

Or to take a stronger case. A deserter from the 
ranis escapes to his home, breaks into it at night, 
robs an infirm father of all the savings he has pro- 
vided for his old age, and in a struggle for their 
possession so injines him that he dies. Must the law 
disclaim all indignation, all resentment, in the punish- 
ment it inflicts, and say to such a ruflSan that it only 
deals hard with him in order to warn others by his 
example, and with the pious hope of making a good 
man of him in the future ? If resentment is ever 
just, is it wrong to give it public expression? If 
it is natural and right in private life, why should it 
be a matter of shame in public life ? If there is such 
a thing as just anger for a single man, does it become 
unjust when distributed among a million ? 

As a matter of fact the law affords a very clear 



PROBLEMS OF PENOLOGY. 8x 

proof, that its real purpose is to administer retribu- 
tive justice and that punishment has no end beyond 
itself, by its careful apportionment of punishment to 
crime, by its invariable adjustment between the evil 
a man has done and the evil it deals out to him in 
return. For what purpose punish offences according 
to a certain scale, for what purpose stay to measure 
their gravity, if merely the prevention of crime is the 
object of punishment? Why punish a slight theft 
with a few months' imprisonment and a burglary 
with as many years ? The slight theft, as easier to 
commit, as more tempting accordingly, should surely 
have a harder penalty affixed to it than a crime 
which, as it is more difficult, is also less probable and 
less in need of strong counter-inducements to restrain 
it. That the law never reasons in this way is because 
it weighs offences according to their different degrees 
of criminality, or, in other words, because it feels that 
the fair retaliation for the burglary is not a fair re-^ 
taliation for the theft. 

If, moreover, the prevention of crime is the chief 
object of punishment, why wait till the crime is 
committed ? Why not punish before, as a certain 
Turk in Barbary is said to have done, who, whenever 
he bought a fresh Christian slave, had him forthwith 
suspended by his heels and bastinadoed, that the 
severe sense of his punishment might prevent him 
from committing in future the faults that should 

G 



82 PROBLEMS OF PENOLOGY. 

merit it ? ^ Why should we ever let a man out of 
prison who has once entered one ? Is he not then a 
hundred times more likely to violate the law than he 
was before ; and is he ever more dangerous to society 
than when he has once suffered for the public 
example, and been released from the discipline 
that was intended to reform him? It is still true, 
as Goldsmith said long ago, that we send a man to 
prison for one crime and let him loose again ready to 
commit a thousand. And so it is, that of the 74,000 
souls who make up our criminal classes, whilst about 
34,000 of them fill our prisons and reformatories, 
there is still an army of 40,000 at large in our 
midst, whom we class as known thieveSy receivers of 
stolen goodSy and suspected persons? 

A child's simple philosophy of punishment there- 
fore is after all the correct one, when it tells you 
without hesitation that the reason a man is punished 
for a bad action is simply * because he deserves it.' 
The notion of desert in punishment is based entirely 
on feelings of the justice of resentment. So that the 

* The same is the philosophy of the nursery-rhyme book : — 

' That's Jack. Lay a stick on his back. 
What's he done ? I cannot say. 
We'll find out to-morrow, and beat him to-day. * 

So said also a more serious authority, Periander, tyrant of Corinth, 
sometimes counted among the Seven Wise Men of Greece : fiii fi6voy 
Tohs ofULprdvovras &\Ad Ktd robs fUWovras K6\a(€» * Punish not only 
those who have done wrong, but those who are going to. ' 
« yudicial Statistics, 1 878, xi. 



PROBLEMS OF PENOLOGY. 83 

primary aim of legal punishment rs precisely the same 
as may be shown historically to have been its origin, 
namely, the regulation by society of the wrongs of 
individuals. In all early laws and societies distinct 
traces may be seen of the transition of the vendettay 
or right of private revenge, from the control of the 
person or family injured by a crime to that of the 
community at large. The latter at first decided only 
the question of guilt, whilst leaving its punishment 
to the pleasure of the individuals directly concerned by 
it. Even to this day in Turkey sentences of death for 
murder run as follows : So-and so is condemned to 
death at the demand of the victim's heirs ; and such 
sentences are sometimes directed to be carried out 
in their presence.* By degrees the community ob- 
tained control of the punishment as well, and thus 
private might became public right, and the resent- 
ment of individual injuries the Retributive Justice of 
the State. 

The recognition of this regulation of resentment 
as the main object of punishment affords the best 
test for measuring its just amount. For that amount 
will be found to be just which is necessary ; that is to 
say, which just suffices for the object it aims at — the 
satisfaction of general or private resentment. It must 
be so much, and no more, as will prevent individuals 
from preferring to take the law into their own hands 

" White's Three Years in Constantinople, ii. 331. 

o 2 



84 PROBLEMS OF PENOLOGY, 

and seekyig to redress their own injuries. This de- 
gree can only be gathered from experience, nor is it 
any real objection to it, that it must obviously be 
somewhat arbitrary and variable. Both Wladimir I., 
the first Christian Czar of Russia, and Wladimir IL 
tried the experiment of abolishing capital punish-^ 
ment for murder ; but the increase of murders by the 
vendetta compelled them to fall back upon the old 
modes of punishment.* Some centuries later the 
Empress Elizabeth successfully tried the same ex- 
periment, without the revival of the vendetta^ the 
state of society having so far altered that the rela- 
tions of a murdered man no longer insisted on the 
death of his murderer. But had Elizabeth abolished 
all legal punishment for murder — had she, that is, 
allowed no public vendetta of any kind — undoubtedly 
the vendetta would have become private again. 

By the same rule, in the case of theft, the value of 
the thing stolen, with some equivalent for the trouble 
of its recovery, taken from the offender or made a lien 
on his earnings, appears to be all that justice can 
demand. Sir Samuel Romilly, himself second to 
none as a lawyer, wrote seventy years ago : * If the 
restitution of the property stolen, and only a few 
weeks* or even but a few days' imprisonment were the 
unavoidable consequence of theft, no theft would ever 
be committed.* Yet the following sentences are taken 

* Pierson, Aus RusslaruTs Vergangenhcit^ 31, 32. 




PROBLEMS OF PENOLOGY 85 

at random from authentic English sources : three 
months' imprisonment for stealing a pipe, six months 
for stealing a penny, a twelvemonth for stealing ah 
umbrella, five years' penal servitude for stealing some 
stamps from a letter, seven years for stealing two- 
pence. In such cases the principle of vindictiveness 
exceeds the limits of necessity, and therefore of jus- 
tice ; whilst the law loses all its dignity as the 
expression of unimpassioned resentment. 

Is it possible, then, so beforehand to apportion 
punishments to crimes that when a crime is committed 
it shall be but necessary to refer to a code and at once 
detect its appropriate punishment "i Or must the law 
be general in its language, and leave a wide margin 
to the discretion of the judge } Beccaria would have 
the judicial function confined solely to the ascertain- 
ment of the fact of a crime, its punishment preordained 
by the law. On the other hand it is said, that it is 
impossible to anticipate every case that may arise ; 
that no two cases are ever alike ; that it is better to 
leave the nice adjustment of penalties to the wisdom 
and impartiality of a judge, and only limit his dis- 
cretion by rules of a most expansive description. 

The Chinese penal code of 1647 is probably the 
nearest approach to Beccaria's conception, and nothing 
is more marvellous than the precision with which it 
apportions punishments to every shade of crime, 
leaving no conceivable offence, of commission or 



86 PROBLEMS OF PENOLOGY, 

omission, without its exact number of bamboo strokes, 
its exact pecuniary penalty, or its exact term or 
distance of banishment. It is impossible in this code 
to conceive any discretion or room for doubt left to 
the judicial officers beyond the discovery of the 
fact of an alleged crime. But what is practicable in 
one country is practicable in another ; so that the 
charge so often urged against thus eliminating judi- 
cial discretion, that it is fair in theory but impossible 
in practice, finds itself at direct issue with the facts 
of actual life.* 

But althoqgh the laws of every country thus re- 
^cognise in different degrees the retributive nature of 
.punishment, by their constant attention to its appor- 
tionment to crime, there is another corollary of the 
desirability of a just proportion between the two, 
which has never been, nor is ever likely to be, ac- 
cepted : namely, that from the point of view of the 
public interest, which in theory is the only legal view, 
it is no mitigation of a crime that it is a first offence, 
nor any aggravation of one that it is the second. 

For since the observance of some regular propor- 
tion between crime and punishment, whatever that 
proportion may be, constitutes the first principle of an 

> See SirG. Staunton's /'^wo/ Cade of China, Ixxi. 278-9, 28$, 345, 
367, 38 L, 449, for tables apportioning punishment to different crimes 
according to an exact mathematical scale. There is no reason to 
suppose th^lt this scale was never acted upon, even if it is not observed 
Aow, about which there is no good evidence. 



PROBLEMS OF PENOLOGY. 87 

equitable code ; and since the most important thing 
in public morality is a fixed penal estimate for every 
class of crime ; it is above all things desirable that 
the law should always adhere to such proportion and 
estimate, by concerning itself solely with the crime 
and not with the criminal. The injury to the public 
is precisely the same whether a criminal has broken 
the law for the first time or for the thousandth and 
first ; and to punish a man more severely for his 
second offence than for his first, because he has been 
punished before, is to cast aside all regard for that 
due proportion between crime and punishment which 
is after all the chief ingredient of retributive justice, 
and to inflict a penalty often altogether incommen- 
surate with the injury inflicted on the public* 

For instance, the injury to the public is no greater 
the hundredth time a man steals a rabbit than it is the 
first The public may be interested in the prevention 
of poaching, but it is not interested in the person of 
the poacher, nor in the number of times he may have 
broken the law. The law claims to be impersonal — 
to treat offences as they affect the State, not as they 
affect individuals ; to act mechanically, coldly, and 
dispassionately. It has, therefore, simply to deal with 
the amount of injury done by each specific offence, 
and to affix to it its specific penalty, regardless of all 
matters of moral antecedents. The repetition of an 
offence may make its immorality the greater, but its 



S8 PROBLEMS OF PENOLOGY, 

criminality remains the same, and this only is within 
the province of the law. 

It is the specific crime, not the fact that it is a 
second or third felony, which is injurious. Neither a 
community nor an individual suffer more from the 
commission of a crime by a man who commits it 
for the second time than from its commission by a 
man who has never committed it before. If two 
brothers are each robbed of a pound apiece on two 
several occasions, the one who is robbed each time by 
the same criminal suffers no more than the one who is 
robbed each time by different criminals. Still less is 
the public more injured in one case than in the other. 
Therefore the former brother is entitled for his second 
loss to no more restitution than the other, nor has 
any more claim on society for the infliction of a 
severer punishment on his behalf than that inflicted 
for the second loss of his brother. 

A few stories may be taken as illustrative of 
thousands to indicate the mischief and travesty of 
justice which arises from the neglect of this principle, 
and from the custom of making a legal inquiry into 
moral antecedents. 

A farm labourer, with a wife and four children, 
and earning eleven shillings a week, was imprisoned 
in the county gaol for two months for the theft of a 
pound of butter. Soon after his release sickness 
entered his home, and to supply his children's wants 



PROBLEMS OF PENOLOGY, 89 

he again yielded to temptation and stole twelve 
duck's eggs. For this he was sentenced to seven 
years* penal servitude; or rather not for this theft, 
but because he had already incurred a severe punish- 
ment for a theft of some butter. The sentence 
was most perfectly lawful, but was it not perfectly 
unjust ? 

Almost any number of the ' Times * will illustrate 
the same thing. Take the account of the Middlesex 
Sessions of February 24, 1880. There we find 
the case of a man and woman sentenced to seven 
and five years' penal servitude respectively. What 
enormities had they committed } The man had 
stolen three-halfpence from somebody ; and the 
woman, who was a laundress, had stolen two skirts, 
of the value of six shillings, from a vendor of sheep's 
trotters. The man had incurred previously seven 
years' penal servitude for a robbery with violence, 
and the woman had three times in her life been 
sentenced to imprisonment. But is it just that, 
because a man has been severely punished once, no 
rule nor measure shall be observed with him if he 
incur punishment again ? And might not a vendor 
of sheep's trotters have been satisfied, without a 
laundress becoming a burden to the State .^ 

It will be said, of course, that the practice of giving 
increased sentences where there have been previous 
convictions prevails all over the world and in all 



90 PROBLEMS OF PENOLOGY. 

States of civilisation. But in that very fact lies the 
strength of the argument against ft. By the Roman 
law a third case of llieft, however slight, exposed a 
man to death.* By the laws of St. Louis the man 
who stole a thing of trifling value lost an ear the first 
time, a foot the second, and was hung the third. By 
the criminal code of Sardinia in the fifteenth century, 
asses were condemned to lose one ear the first time 
they trespassed on a field not their master's, and their 
second ear for a second offence. But enough of such 
instances. The practice is undoubtedly universal ; 
but so at one time were ordeals and tortures. May 
not, then, the practice be, like them, part and parcel 
of a crude state of law, such as was unavoidable in 
its emergence to better things, but such as it is worth 
some effort to escape from ? 

There are, however, certain h'mitations even to 
the supposed universality of the custom. For the 
Roman jurists did not consider a re-conviction as a 
circumstance in itself which justified aggravation of 
punishment ; and all that can be gathered from some 
fragments in the Pandects and Code is, that some 
particular cases of repeated crimes were punished 
more severely than a first offence. But they were 
crimes of the same kind ; and a man whose first crime 

> Farinaccius : < Potest pro tribus furtis, quamvis minimis, poena 
mortis imponi. * The philosophy of this was, that to do anything twice 
was the same as doing it frequently : < Quod bis fit, frequenter fieri 
dicitur. * 



PROBLEMS OF PENOLOGY, 91 

was a theft and whose second was an assault would 
not have incurred an aggravated penalty. It is the 
same te-day la the Austrian, Tuscan, and a few other 
codes: a second crime is only pamshed Toxm 
severely as a second crime when it is of the same 
kind as the first, so that it would not suffice to prove 
simply a previous conviction for felony irrespective of 
the particular sort. There is also another limitation 
that has sometimes been recognised, for in the Roman 
law the rule of an increased penalty fell to the ground, 
if three years elapsed without offence between the 
punishment for one crime and the commission of a 
second.* 

If it be said that a second convictioin makes it 
necessary for society to protect itself by stronger 
measures against a member who thus defies its power, 
it may be asked whether this is not an application 
of exactly the same reasoning to the crimes of in- 
dividuals, which as applied to the crimes of all men 
generally led our ancestors so far astray in the distri- 
bution of their punishments. Nothing could have been 
more plausible than their reasoning : * The punish- 
ment in vogue does not diminish the crime, therefore 
increase the punishment' But nothing could have 

* The French have two words, ricidive and rScidiver^ to signify a 
relapse into crime, the word being applied as a metaphor from medicine, 
where it means the recurrence of a disease. In English we might 
adopt the word rcciduous to express renewed acts of crime after punish- 
ment. 



92 PROBLEMS OF PENOLOGY. 

been less satisfactory than the result, for with the 
increase of punishment that of crime went hand in 
hand. The same reasoning is equally plausible in 
the case of individuals, with the same perplexing 
question resulting in the end : * How comes it that, 
in spite of the threatened greater punishment, the 
majority of criminals are yet old offenders ? ' 

It is unhappily no mere theory, that the majority 
of crimes are committed precisely by those who risk 
most in committing them ; by those, that is, who com- 
mit them with the aggravated penalty full in view. 
By the existing law (of which both the Criminal 
Code- and the Penal Servitude-Commissioners have 
proposed the mitigation) anyone convicted of felony 
after a previous conviction for felony is liable to penal 
servitude for life, or to imprisonment with hard labour 
for four years, with one or more whippings. The 
minimum punishment for a second conviction of 
felony is seven years. Yet, with the knowledge of 
such increased punishments before their eyes, with 
the full consciousness of their liabilities as old of- 
fenders, official statistics show that of both the male 
and female convicts in the English convict prisons 
considerably more than half have incurred previous con- 
victions} Of the male convicts in 1878, 79 per cent., 

' The figures for May 1878 are : Men, 8,983; of these only 2.064 
had had no previous conviction of any kind, 4,672 had had sentences 
short of penal servitude, and 2,247 penal servitude sentences. Of the 



PROBLEMS OF PENOLOGY. 93 

and of the female 89 per cent., were cases of recidu- 
ous crime. May it not, then, be argued from such a 
failure of the system to an error in the principle on 
which it rests } For is it not evident that the aggra- 
vated penalty does as little to deter as the original 
punishment does to reform ? 

But undoubtedly punishment, although in its 
origin and present intention vindictive, must exercise 
a certain preventive force against crime, and this 
preventive force can scarcely be estimated, for that 
which is prevented is, of couFse, not seen. But the 
efficiency of punishment as a deterrent is propor- 
tioned to its certainty, and there is a large element 
of uncertainty that can never be eliminated. For 
every malefactor there are two hopes : first, that he 
may escape detection or apprehension ; secondly, 
that he may escape conviction. That his hopes of 
impunity are not without reason greater than his 
fears of punishment the following facts attest. 

In a period of ten years, from 1867 to ^^l^y the 
total number of principal indictable offences com- 
mitted in the metropolis against property — and these 
constitute the great majority of crimes — ^were 1 17,345. 
But the apprehensions for these offences were only 
26,426, the convictions only 19,242. In other words, 

1,226 women, 124 had never been convicted before, 635 had had sen- 
tences short of penal servitude, 567 penal servitude sentences. — (P,S, 
Report, iii. 1 170. See also ii. 206, 296, 364.) 



94 PROBLEMS OF PENOLOGY. 

the chances against apprehension for such crimes as 
burglary or larceny are four to one in favour of the 
criminal, whilst the chances against his conviction 
and punishment are fully as high as six to one. 
When we thus find that only i6 per cent, of such 
crimes receive any punishment, the remaining 84 per 
cent, escaping it altogether, and that only 22 per cent. 
are even followed by apprehension, we shall the more 
admire the general efficacy of our criminal machinery, 
in which prevention by punishment plays so small a 
part.* 

But punishment bears much the same relation to 
crime in the country at large that it does in the metro- 
polis. Let one year be taken as a fair sample of all. 
The total number of indictable offences of all kinds 
reported to the police in 1877-8 was 54,065. For these 
offences only 24,062 persons were apprehended. Of 
these latter only 16,820 were held to bail or com- 
mitted for trial ; and of these again 12,473 were con- 
victed and punished.^ So that, though the proportion 
of convictions to the number of prisoners who come 
to trial is about 75 per cent., the proportion of con- 
victions, that is, of punishments, to the number of 
crimes committed is so low as 23 per cent. Of the 
54,065 crimes reported to the police in one year 
41,592 were actually committed with impunity ; and 

* Penal Servitude Acts Commission^ i^79» vol. iii. 1195^^. 
* Judidal Statistics f 1878, xvi, 45. 



PROBLEMS OF PENOLOGY. 95 

thus the proportion which successful crime of all sorts 
bears to unsuccessful is rather more than as four to 
one.* So that there is evident truth in what a good 
authority has said : * Few offences comparatively are 
followed by detection and punishment, and with a 
moderate degree of cunning an offender may gene- 
rally go on for a long time with but feeble checks, if 
not complete impunity/^ 

Against this general uncertainty of punishment, 
which no severity in the law can affect or make up 
for, the only certainty of punishment dependent on 
the law is in the event of conviction. But even this 
certainty is of a very qualified nature, for it depends 
on sentiments of due proportion between a crime 
and its penalty, which in no two men are the same. 
Every increase of severity in punishment diminishes 
its certainty, since it holds out to a criminal fresh 
hopes of impunity from the clemency of his judges, 
prosecutors, or jury. 

But there is a still further uncertainty of punish- 
ment, for it is as well known in the criminal world as 
elsewhere that the sentence pronounced in court is not 
the real sentence, and that neither penal servitude for 

* The same seems to be also true of France. * Quoi de plus im- 
portant que ce fait, qu'en moyenne annuelle 30,000 crimes ou d^lits 
restent impunis parce que les auteurs en sont inconnus, et 10,000 environ 
parce que les charges port^s contre les accuses ou pr^venus ont ete 
jug^s insufi&santes.* — Legoyt, La France et PEtranger, i. 406. 

« Hill, CHme, 28. 



\ 



t 



i 

.1 






96 PROBLEMS OF PENOLOGY, \ 

five years nor penal servitude for life mean necessarily ,^ 
anything of the sort. The humanity of modern legis- 
lation insists on a remission of punishment, dependent 
on a convict's life in the public works prisons, in order 
that the element of hope may brighten his lot and 
perchance reform his character. This remission was 
at first dependent simply on his conduct, which was 
perhaps too generously called good where it was hard 
for It to be bad ; now it depends on his industry and 
amount of work done. Yet the element of hope 
might be otherwise assured than by lessening the 
certainty of punishment, say, by associating industry 
or good conduct with such little privileges of diet, 
letter- writing, or receiving of visits, as still shed some 
rays of pleasure over the monotony of felon-life. 
It should not be forgotten, that the Commission of 
1863, which so strongly advocated the remissibility 
of parts of penal sentences, did so in despite of one 
of its principal members, against no less an authority 
than the Lord Chief Justice, then Sir Alexander 
Cockburn.* The very fact of the remissibility of a 
sentence is an admission of its excessive severity ; for 
to say that a sentence is never carried out is to say 
that it need never have been inflicted. 

The question, therefore, arises, Does crime depend 
to any appreciable extent on imprisonment at all, or 
on the length or shortness of sentences ? 

* Memorials of Millbank, ii. 274-5. 



PROBLEMS OF PENOLOGY. 97 

The right to ask such a question derives itself 
from recent experience. In 1853 the country decided 
to shorten terms of penal servitude as compared with 
those of the then expiring system of transportation, 
for which they were to be substituted. Four years 
later it was resolved to equalise terms of penal servi- 
tude with those formerly given of transportation, 
though transportation for seven years was still to 
have its equivalent in three of penal servitude. Then 
came the garrotting year, 1862, in consequence of 
which the minimum term of penal servitude was 
raised to five years, whilst no sentence of penal servi- 
tude, after a previous conviction of felony, was to be 
for less than seven years. Now again the tide has 
turned in favour of shorter sentences, and it is officially 
proposed to relinquish the latter minimum of servitude 
as too severe, and as leading in practice to sentences 
of simple imprisonment, which on the other hand are 
declared to be too slight. 

In such a zigzag path has our penal legislation 
been feeling, and is still feeling, its way, with evident 
misgiving of that principle of repression, as false as 
it is old, that an increase of crime can only be met by 
an increase of punishment. 

There seem to be three principal reasons why, 
under our present system, crime still keeps its ge- 
neral level, irrespective of all changes in our degrees 
of punishment. 

H 



^8 PROBLEMS OF PENOLOGY. 

In the first place, our public works prisons, however 
excellent for their material results, are so many schools 

of crime, where for the one honest trade a man learns 
by compulsion he acquires a knowledge of three or 
four that are dishonest. * I have become acquainted,' 
says a released convict, * with more of what is bad and 
evil, together with the schemes and dodges of profes- 
sional thieves and swindlers, during the four years I 
served the Queen for nothing, than I should have done 
in fifty years outside the prison walls/ * The associa- 
tion rooms at Dartmoor are as bad as it is possible 
for anything to be . . . they are really class-rooms 
in the college of vice, where all are alike students 
and professors. The present system in most in- 
stances merely completes the man's vicious and 
criminal education, instead of in the slightest degree 
reforming him.' * It has been attempted in various 
ways to obviate this difficulty, by diminishing oppor- 
tunities of companionship ; but the real demoralisa- 
tion of prison life is probably due less to the actual 
contact of bad men with one another than to the 
deadened sense of criminality which they derive from 
the feeling of numbers, just as from the same cause 
the danger of drowning is forgotten on the ice. 
Prisoners in gangs lose all shame of crime, just as 
men in armies forget their native horror of murder. 

* The author of Five Years^ Penal Servitude. With this testimony 
agrees thoroughly that of the Chaplain of Parkhurst Prison (P.S. 
Rep. iii. 707-8), that of the Governor of Portland Prison (ii. 164-5), ^^'^ 
that of the Governor of Spike Island (iii. 814-5). 



PROBLEMS OF PENOLOGY. 99 

In the second place, a large proportion of the 
habitual criminal class is formed of weak-minded or 
imbecile persons, notorious for the repeated commis- 
sion of petty thefts, crimes of violence and passion, 
and confessed to be * not amenable to the ordinary 
influences of self-interest or fear of punishment' * It 
is now proposed to separate this class of prisoners 
from others ; but is punishment operative on them at 
all ? Is not their proper place an asylum ? 

In the third place, there is the discharge from 
prison; and truly, if the prevention of crime be a main 
object of society, it is just when a man is released from 
prison that, from a social point of view, there would 
seem most reason to send him there. For even if, 
whilst in prison, he has learned no dishonest means of 
livelihood, how shall he, when out of it, set about ob- 
taining an honest one ? If temptation was too strong 
for him when all doors were open to him, is it likely 
to be less strong when most are closed ? Will it not 
be something like a miracle, if, with two pounds 
paid to him on his discharge and his railway fare 
paid home, he eat for any considerable time the 
bread of honesty, and sleep the sleep of the just ? 

That these causes do to a great extent defeat the 
preventive effect of our penal laws, is proved by the 
tale of our criminal statistics, which reveal the fact 
that most of our crime is committed by those who 

' Penal Servitude Report, i. 43. 

H 2 



100 PROBLEMS OF PENOLOGY, 

have once been punished, and that of general crime 
about ^^ per cent, is committed with impunity. But 
if so large a proportion of crimes pass unpunished 
altogether, it is evident that society depends much 
less for its general security upon its punishments than 
is commonly supposed. Might it not, therefore, still 
further relax such punishments, which are really a 
severe tax on the great majority of honest people for 
the repression of the very small proportion who con- 
stitute the dishonest part of the community ? ^ 

For if punishment is weak to prevent crime, it is 
strong to produce it, and it is scarcely open to doubt 
that its productive force is far greater than its preven- 
tive. Our terms of imprisonment compel more persons 
to enter a career of crime than they prevent from 
pursuing one, that being often the only resource left 
■ for those who depend on a criminal's labour. Whether 
in prison or the workhouse, such dependents become a 
charge to society ; nor does it seem reasonable, that 
if one man under sore temptation steals a loaf, a hun- 
dred other men who do no such thing must contri- 
bute to keep, not only the prisoner himself, but his 
family too, in their daily bread for so long a time as 
it pleases the law to detain him from earning his and 
their necessary subsistence. 

' If we include offences proceeded against summarily with the in- 
dictable offences reported, about 2 per cent, of the population may be 
counted as dishonest. 



PROBLEMS OF PENOLOGY. lOi 

Since, therefore, there is more to fear from a pun- 
ished than from an unpunished criminal, there is the 
less reason to regret the general impunity of crime. 
There is indeed a large class of crimes for the pre- 
vention of which more would be done, by leav- 
ing them to their natural consequences, and to the 
strong power against them which the general inte- 
rests and moral feelings of mankind will always en- 
force, than by actual punishment. It is particularly 
crimes of dishonesty which are best punished by the 
mere fact of their discovery. By the Norwegian law 
if an offender holds any official place he is punished, 
not by fine or imprisonment, but by the loss of his 
office and all the privileges connected with it.^ And 
if we imagine a country without any legal penalty 
at all for theft or dishonesty, thieves and their tribe 
would soon find their proper punishment, by that 
process of social shifting, which would drive them 
to the most deleterious or dangerous occupations of 
life even more effectually than it so drives them at 
present. The less dependence is placed on the penal 
sanctions of crime, the stronger do the moral re- 
straints from it become. 

It is against crimes affecting the person that 
punishments are most desirable and their vindictive 
character most justly displayed. Personal violence 
calls for personal detention or personal chastisement ; 

* Strafgesetzbuch^ c. vi. 33. 



fOS PMOBLEMiS OP PENOLOGY. 

and the principle of analogy in punishnient is most 
a p prop ria te in the case of a man who maltreats his 
wife or abuses his sUengUi against any weakness 
greater than his own. Punishment in such cases is a 
demand of natural justice, whether anycMie is affected 
by the example or not, and whether or not the man 
himself is improved by it Not only is it the best 
means of enforcing that personal security which is 
one of the main functions of the State, but it is an 
expression of that sense of moral reprobation which 
is so necessary to the good order of society. 

Repression by the law seems likewise the only 
means of preventing that laige class of actions which 
affect the general character and tone of a country, 
whilst they injuriously affect no individual in par- 
ticular. The protection of creatures too feeble to 
protect themselves justifies, under this head, the legal 
punishment of cruelty to animals. It is idle to say 
that the law can do nothing against the average 
moral sense of the community, for the law is often 
at first the only possible lever of our moral ideas. 
Were it not for the law we should still bait bulls and 
bears, and find amusement in cock-throwing ; and till 
the law includes hares and pigeons within the pale of 
protection drawn so tenderly round bulls and bears, 
no moral sense is likely to arise against the morbid 
pleasures of coursing and pigeon-shooting. 

That the punishments of long custody by which we 



PROBLEMS OF PENOLOGY. 103 

now defend our lives and properties are out of all 
proportion to the real needs of social existence is 
indicated by such a fact as that no increase of crime 
used to attend the periodical release of prisoners 
which was for long, if it is not still, customary in 
Russia at the beginning of each reign. Neither in 
India, when on the Queen's assumption of tlie title 
of Empress, a pardon was granted to about one-tenth 
of the prison population, did any increase of crime 
ensue, as, according to all criminal reasoning, it should 
have done, if the safety of society depends on the 
custody of the criminal class.* In Sweden a low rate 
of crime seems to be a direct consequence of a low 
scale of punishment; Of those condemned to travaux 
forc^Sy which may vary from a period of two months 
to a period for life, 64 per cent, are condemned for 
one year, and only 3 per cent, are condemned for 
seven years ; * whilst sentences to the latter period in 
England form between 50 and 60 per cent, of the 
sentences to penal servitude. 

But if the custody of the criminal class has been 
overrated as a preventive of crime, or regarded as the 
sole preventive instead of one amongst many, it does 
not follow that crime on that account must be left to 
itself. It only follows that we should trust to punish- 
ment less and to other agencies more in our war with 

* "Wheeler, Imperial Assemblage at Delhi^ 1877, 124, 127. 

* Congrls pinitentiaire internaiicnal. Tableau xii. 



104 PROBLEMS OF PENOLOGY, 

crime, and that we should seek to check the latter 
at its source, not in its full stream, by attending to 
the improvement of the general conditions of life. 
It is quite certain, for instance, that the spread of 
education, of which Beccaria wrote in terms of such 
despair, means the diminution of crime ; and as the 
majority of crimes are committed between the ages 
of twenty and forty, it may be predicted that from 
the present year onwards the great Act of 1870 will 
bear increasing fruit in lowering our criminal statis- 
tics. More too may be hoped for from the electric 
light than from any multiplication of prisons. 

There are a few obvious remedies by which the 
inducements to crime might be easily diminished. 
In 1808 Sir Samuel Romilly brought in a bill, to 
provide persons tried and acquitted of felony with 
compensation, at the discretion of the judge, for 
the loss they incurred by their detention and trial. 
This was objected to, on the ground that the pay- 
ment ef such compensation out of the county rates 
would discourage prosecutions ; and the only justice 
done to men falsely accused from that day to this 
is the authorisation given to goal-governors in 1878 
to provide prisoners, who have been brought from 
another county for trial at the assizes and have been 
acquitted, with means of returning to their own, 
homes. Something more than this is required tcj 
save a man so situated from falling into real crime. 



PROBLEMS OF PENOLOGY, 105 

One thing that might be done, which would also 
serve at the same time to keep a prisoner's family 
from want, the main source of crime, would be the 
formation of a Prisoners' Fund, for his and their 
benefit. For this there is a precedent in a quite 
recent Act. For the Act, which abolished the forfei- 
ture of a felon's property, enabled the Crown to 
appoint an administrator of it, for the benefit of the 
persons injured by the crime and the felon's family, 
the property itself and its income reverting ultimately 
to the convict or to his representatives. There could, 
however, be no objection in justice to the forfeiture 
of a proportionate part of every felon's property, such 
forfeiture to be dedicated to the formation of a fund, 
out of which assistance should be given, both to the 
families of prisoners during their custody and to the 
prisoners themselves on their discharge.^ Such a fund 
might be still further increased by the substitution 
of a lien on a man's wages or income for many 
minor offences now punished, but not prevented, by 
imprisonment. 

By the present English law a person convicted of 
more offences than one may be sentenced for each 
offence separately, the punishment of each one in 

* There is a precedent for such a law in the legislation of Leo- 
pold, Grand Duke of Tuscany : * Les malheureux injustement em- 
prisonnes et reconnus innocents devaient etre indemnises au moyen 
d*un fonds forme par les amendes, mesure equitable et profondemcnt 
humaine.' — Loiseleur, HUt, des Peines^ 336. 



io6 PROBLEMS OF PENOLOGY. 

succession taking effect on the expiration of the other. 
By this law (which the Criminal Code Commissioners 
propose to alter) imprisonment may be spread over 
the whole of a lifetime. On this point the Chinese 
law again offers a model, for it enacts that when two 
or more offences are proved against a man, they shall 
all be estimated together, and the punishment of all 
the lesser offences be included in that of the prin- 
cipal charge, not in addition to it So also if the 
offences are charged at different times, and the pun- 
ishment of one has been already discharged, there 
IS no further punishment for the other subsequent 
charges, unless they be charges of greater criminality, 
in which case only the difference between the punish- 
ments can be legally incurred.* But this of course 
presupposes a definite scale of crimes and punish- 
ments. 

Such are some of the problems connected with 
penology, which best illustrate the imperfection of its 
hitherto attained results. Only one thing as yet 
seems to stand out from the mist, which is, that 
closely associated as crime and punishment are both 
in thought and speech, they are but little associated 
in reality. The amount of crime in a country ap- 
pears to be a given quantity, dependent on quite 
other causes than the penal laws directed to its re- 
pression. The efficiency of the latter seems propor- 

* Staunton's Penal Code of China^ 29, 



PROBLEMS OF PENOLOGY 107 

tioned to their mildness, not to their severity ; such 
severity being always spoiled by an inevitable mode- 
ration in practice. The conclusion, therefore, would 
seem to be, that a short simple code, with every 
punishment attached to every offence, with every 
motive for aggravation of punishment stated, and on 
so moderate a scale that no discretion for its mitiga- 
tion should be necessary, would be the means best 
calculated to give to penal laws their utmost value as 
preventives of crime, though experience proves that 
as such preventives their place is a purely secondary 
one in a really good system of legislation. 



DEI DELITTI E DELLE PENE. 



BY THE 



MARQUIS CESARE BECCARIA. 



TRANSLA TED. 



*In rebus quibuscumque difHcilioribas non expectandum ut quis 
simul et serat et metat, sed praeparatione opus est, ut per gradus 
maturescant. ' — Bacon. 



•J- 



TO THE READER. 

Some remnants of the laws of an ancient conquering 
people, which a prince who reigned in Constantinople 
some 1,200 years ago caused to be compiled, mixed 
up afterwards with Lombard rites and packed in the 
miscellaneous volumes of private and obscure com- 
mentators — these are what form that set of tradi- 
tional opinions which from a great part of Europe 
receive nevertheless the name of laws ; and to this 
day it is a fact, as disastrous as it is common, that 
some opinion of Carpzovius, some old custom pointed 
out by Clarus, or some form of torture suggested in 
terms of complacent ferocity by Farinaccius, constitute 
the laws, so carelessly followed by those, who in all 
trembling ought to exercise their government over 
the lives and fortunes of men. These laws, the dregs 
of the most barbarous ages, are examined in this 
book in so far as regards criminal jurisprudence, and 
I have dared to expose their faults to the directors 
of the public happiness in a style which may keep at 



112 TO THE READER. 

a distance the unenlightened and intolerant multi- 
tude. The spirit of frank inquiry after truth, of free- 
dom from commonplace opinions, in which this book 
is written, is a result of the mild and enlightened 
Government under which the Author lives. The 
great monarchs, the benefactors of humanity, who 
are now our rulers, love the truths expounded, with 
force but without fanaticism, by the obscure philo- 
sopher, who is only roused to indignation by the 
excesses of tyranny, hvX. is restrained by reason ; 
and existing abuses, for whosoever well studies all 
the circumstances, are the satire and reproach of 
past ages, and by no means df the present age or of 
its lawgivers. 

Whoever, therefore, shall wish to honour me with 
his criticisms, I would have begin with a thorough 
comprehension of the purpose of my work — z, purpose 
which, so far from diminishing legitimate authority, 
will serve to increase it, if opinion can effect more 
over men's minds than force, and if the mildness and 
humanity of the government shall justify it in the eyes 
of all men. The ill-conceived criticisms that have 
been published against this book are founded on con- 
fused notions, and compel me to interrupt for a moment 
the arguments I was addressing to my enlightened 
readers, in order to close once for all every door 
against the misapprehensions of timid bigotry or 
against the calumnies of malice and envy. 



TO THE READER, 1 13 

There are three sources of the moral and political 
principles which govern mankind, namely, revelation, 
natural law, and social conventions. With regard to 
their principal object there is no comparison between 
the first and the other two, but they all resemble one 
another in this, that they all three conduce to the 
happiness of this present mortal life. To consider the 
different relations of social conventions is not to ex- 
clude those of revelation and natural law ; rather it is 
the thousandfold changes which revelation and na- 
tural law, divine and immutable though they be, have 
undergone in the depraved mind of man, by his own 
fault, owing -to false religions and arbitrary notions of 
virtue and vice, that make it appear necessary to ex- 
amine, apart from all other considerations, the result 
of purely human conventions, expressed or implied, 
for the public need and welfare : this being an idea 
in which every sect and every moral system must 
necessarily agree ; and it will always be a laudable 
endeavour, which seeks to constrain the headstrong 
and unbelieving to conform to the principles that in- 
duce men to live together in society. There are, 
then, three distinct kinds of virtue and vice — the 
religious, the natural, and the political. These three 
kinds ought never to conflict, although all the conse- 
quences and duties that flow from any one of them 
do not necessarily flow from the others. The na- 
tural law does not require all that revelation requires, 

I 



114 TO THE READER. 

nor does the purely social law require all that natural 
law requires ; but it is most important to distinguish 
the consequences of the conventional law — that is, 
of the express or tacit agreements among men — 
from the consequences of the natural law or of re- 
velation, because therein lies the limit of that power, 
which can rightly be exercised between man and man 
without a special mandate from the Supreme Being. 
Consequently the idea of political virtue may, without 
any slur upon it, be said to be variable ; that of natural 
virtue would be always clear and manifest, were it not 
obscured by the stupidity or the passions of men ; 
whilst the idea of religious virtue remains ever one 
and the same, because revealed directly from God and 
by Him preserved. 

It would, therefore, be a mistake to ascribe to one, 
who only discusses social conventions and their conse- 
quences, principles contrary either to natural law or to 
revelation, for the reason that he does not discuss them. 
It would be a mistake, when he speaks of a state of 
war as anterior to a state of society, to understand it 
in the sense of Hobbes, as meaning that no obligation 
nor duty is prior to the existence of society, instead of 
understanding it as a fact due to the corruption of 
human nature and the want of any expressed sanction. 
It would be a mistake to impute it as a fault to a 
writer who is considering the results of the social com- 



TO THE READER, 115 

pact that he does not admit them as pre-existent to 
the formation of the compact itself. 

Divine justice and natural justice are in their 
essence immutable and constant, because the relation 
between similar things is always the same ; but hu- 
man or political justice, being nothing more than a 
relation between a given action and a given state of 
society, may vary according as such action becomes 
necessary or useful to society; nor is such justice 
easily discernible, save by one who analyses the com- 
plex aiid very changeable relations of civil combina* 
tions. When once these principles, essentially distinct, 
become confused, there is no more hope of sound 
reasoning about public matters. It appertains to the 
theologian to fix the boundaries between the just and 
the unjust, in so far as regards the intrinsic goodness 
or wickedness of an act ; to fix the relations between 
the politically just and unjust appertains to the pub- 
licist ; nor can the one object cause any detriment to 
the other, when it is obvious how the virtue that is 
purely political ought to give place to that immutable 
virtue which emanates from God. 

Whoever, then, 1 repeat, will honour me witii his 
criticisms, let him not begin by supposing me to advo- 
cate principles destructive of virtue or religion, seeing 
that I have shown that such are not my principles ; 

and instead of his proving me to be an infidel or a 

I 2 




\ 



Ii6 to THE READER. 

rebel, let him contrive to find me a bad reasoner or a 
shortsighted politician ; but let him not tremble at 
every proposition on behalf of the interests of hu- 
manity ; let him convince me either of the inutility or 
of the possible political mischief of my principles ; let 
him prove to me the advantage of received practices. I 
have given a public testimony of my religion and of 
my submission to my sovereign in my reply to the 
Notes and Observations ; to reply to other writings 
of a similar nature would be superfluous ; but who- 
ever will write with that grace which becomes honest 
men, and with that knowledge which shall relieve 
me from the proof of first principles, of what cha- 
racter soever, he shall find in me not so much a man 
who is eager to reply as a peaceable lover of the 
truth. 



117 



CHAPTER I. 

INTRODUCTION. 

Men for the most part leave the regulation of their 
chief concerns to the prudence of the moment, or to 
the discretion of those whose interest it is to oppose 
the wisest laws ; such laws, namely, as naturally help 
to diffuse the benefits of life, and check that tendency 
they have to accumulate in the hands of a few, which 
ranges on one side the extreme of power and happi- 
ness, and on the other all that is weak and wretched. 
It is only, therefore, after having passed through a 
thousand errors in matters that most nearly touch 
their lives and liberties, only after weariness of evils 
that have been suffered to reach a climax, that men 
are induced to seek a remedy for the abuses which 
oppress them, and to recognise the clearest truths, 
which, precisely on account of their simplicity, escape 
the notice of ordinary minds, unaccustomed as they 
are to analyse things, and apt to receive their impres- 
sions anyhow, from tradition rather than from inquiry. 
We shall see, if we open histories, that laws, which 



Ii8 INRtObUCTION. 

are or ought to be covenants between free men, have 
generally been nothing but the instrument of the 
passions of some few men, or the result of some 
accidental and temporary necessity. They have 
never been dictated by an unimpassioned student of 
human nature, able to concentrate the actions of a 
multitude of men to a single point of view, and to 
consider them from that point alone — the greatest 
happiness divided among the greatest number, Happy 
are those few nations which have not waited for the 
slow movement of human combinations and changes 
to cause an approach to better things, after intole- 
rable evils, but have hastened the intermediate steps 
by good law s ; and deserving is that philosopher 
of the gratitude of mankind, who had the cou- 
rage, from the obscurity of his despised study, to 
scatter abroad among the people the first seeds, so 
long fruitless, of useful truths. 

The knowledge of the true relations between a 
sovereign and his subjects, and of those between 
different nations ; the revival of commerce by the 
light of philosophical truths, diffused by printing; 
and the silent international war of industry, the most 
humane and the most worthy of rational men^ — these 
are the fruits which we owe to the enlightenment of 
this century. But how few have examined and com- 
bated the cruelty of punishments, and the irregulari- 
ties of criminal procedures, a part of legislation so 



INTRODUCTION. 119 

elementarj" and yet so neglected in almost the whole 
of Europe ; and how few have sought, by a return to 
first principles, to dissipate the mistakes accumulated 
by many centuries, or to mitigate, with at least that 
force which belongs only to ascertained truths, the 
excessive caprice of ill-directed power, which has pre- 
sented up to this time but one long example of lawful 
and cold-blooded atrocity ! And yet the groans of 
the weak, sacrificed to the cruelty of the ignorant or 
to the indolence of the rich ; the barbarous tortures, 
multiplied with a severity as useless as it is prodigal, 
for crimes either not proved or quite chimerical ; the 
disgusting horrors of a prison, enhanced by that which 
is the cruellest executioner of the miserable — namely, 
uncertainty ; — these ought to startle those rulers whose 
function it is to guide the opinion of men's minds. 

The immortal President, Montesquieu, has treated 
cursorily of this matter ; and truth, which is indivisible, 
has forced me to follow the luminous footsteps of this 
great man ; but thinking men, for whom I write, will 
be able to distinguish my steps from his. Happy 
shall I esteem myself if, like him, I shall succeed in 
obtaining the secret gratitude of the unknown and 
peaceable followers of reason, and if I shall inspire 
them with that pleasing thrill of emotion with which 
sensitive minds respond to the advocate of the in- 
terests of humanity. 

To examine and distinguish all the different sorts 



lao INTRODUCTION, 

of crimes and the manner of punishing them would 
now be our natural task, were it not that their nature, 
which varies with the different circumstances of times 
and places, would compel us to enter upon too vast 
and wearisome a mass of detail. But it will suffice to 
indicate the most general principles and the most 
pernicious and common errors, in order to undeceive 
no less those who, from a mistaken love of liberty, 
would introduce anarchy, than those who would be 
glad to reduce their fellow-men to the uniform re- 
gularity of a convent. 

What will be the penalty suitable for such and 
such crimes } 

Is death a penalty really useful and necessary for 
the security and good order of society.? 

Are torture and torments y«^/, and do they attain 
the end which the law aims at } 

What is the best way of preventing crimes ? 

Are the same penalties equally useful in all 
times } 

What influence have they on customs 1 

These problems deserve to be solved with such 
geometrical precision as shall suffice to prevail over 
the clouds of sophistication, over seductive eloquence, 
or timid doubt. Had I no other merit than that of 
having been the first to make clearer to Italy that 
which other nations have dared to write and are 
beginning to practise, I should deem myself fortunate ; 



INTRODUCTION, 121 

but if, in maintaining the rights of men and of in- 
vincible truth, I should contribute to rescue from 
the spasms and agonies of death any unfortunate 
victim of tyranny or ignorance, both so equally fatal, 
the blessings and tears of a single innocent man in 
the transports of his joy would console me for the 
contempt of mankind. 



CHAPTER II. 

THE ORIGIN OF PUNISHMENTS — THE RIGHT OF 

PUNISHMENT. 

From political morality, unless founded on the im- 
mutable sentiments of mankind, no lasting advan- 
tage can be hoped. Whatever law deviates from 
these sentiments will encounter a resistance which 
will ultimately prevail over it, just in the same way 
as a force, however slight, if constantly applied, will 
prevail over a violent motion applied to any physical 
body. 

If we consult the human heart we shall therein 
discover the fundamental principles of the real right 
of the sovereign to punish crimes. 

No man has gratuitously parted with a portion of 
his own liberty with a view to the public good ; that 
is a chimera which only exists in romances. Each 
one of us would wish, if it were possible, that the 



122 ORIGIN OF PUNISHMENTS. 

covenants which bind others should not bind himself. 
There is no man but makes himself the central object 
of all the combinations of the globe. 

The multiplication of the human race, slight in 
the abstract, but far in excess of the means afforded 
by nature, barren and deserted as it originally was, for 
the satisfaction of men's ever increasing wants, caused 
the first savages to associate together. The first 
unions necessarily led to others to oppose them, and 
so the state of war passed from individuals to nations. 

Laws are the conditions under which men, leading 
independent and isolated lives, joined together in 
society, when tired of living in a perpetual state of 
war, and of enjoying a liberty which the uncertainty 
of its tenure rendered useless. Of this liberty they 
voluntarily sacrificed a part, in order to enjoy the 
remainder in security and quiet. The sum-total of 
all these portions of liberty, sacrificed for the good 
of each individually, constitutes the sovereignty of a 
nation, and the sovereign is the lawful trustee and 
administrator of these portions. But, besides forming 
this trust-fund, or deposit, it was necessary to protect 
it from the encroachments of individuals, whose aim 
it ever is not only to recover from the fund their own 
deposit, but to avail themselves of that contributed 
by others. * Sensible motives,' were therefore wanted 
to divert the despotic will of the individual from re- 
plunging into their primitive chaos the laws of society. 



ORIGIN OF PUNISHMENTS, 123 

' Such motives were found in punishments, established 
against transgressors of the laws ; and I call them 
sensible motives, because experience has shown that 
the majority of men adopt no fixed rules of conduct, 
nor avoid that universal principle of dissolution, ob- 
servable alike in the moral as in the physical world, 
save by reason of motives which directly strike the 
senses and constantly present themselves to the mind, 
counterbalancing the strong impressions of private 
passions, opposed as they are to the general welfare ; 
not eloquence, nor declamations, nor the most sublime 
truths have ever sufficed to curb the passions for any 
length of time, when excited by the lively force of 
present objects. 

As it, then, was necessity which constrained men 
to yield a part of their individual liberty, it is certain 
that each would only place in the general deposit the 
least possible portion — only so much, that is, as would 
suffice to induce others to defend it. The aggre- 
gate of these least possible portions constitutes the 
right of punishment ; all that is beyond this is an 
abuse and not justice, a fact but not a right.^ Punish- 

* Note that the word Right is not opposed to the word Force ; but 
the former is rather a modification of the latter ; that is, the modification 
most advantageous to the greater number. And by justice I mean 
nothing else than the chain which is necessary for holding together 
private interests and preventing their breaking away into the original 
state of insociability. 

One must be careful not to attach to this word Justice the idea of 
anything real, as of a physical force or an independent entity ; it is only 



124 ORIGIN OF PUNISHMENTS, 

ments which exceed what is necessary to preserve the 
deposit of the public safety are in their nature unjust ; 
and the more just punishments are, the more sacred 
and inviolable is personal security, and the greater the 
liberty that the sovereign preserves for his subjects. 



CHAPTER III. 

CONSEQUENCES. 

The first consequence of these principles is, that the 
laws alone can decree punishments for crimes, and 
this authority can only rest with the legislator, who 
represents collective society as united by a social 
contract. No magistrate (who is part of society) can 
justly inflict punishments upon another member of 
the same society. But since a punishment that 
exceeds the legally fixed limit is the lawful punish- 
ment plus another one, a magistrate can, under no 
pretext of zeal or the public good, add to the penalty 
already decreed against a delinquent citizen. 

The second consequence is, that the sovereign, 
who represents society itself, can only form general 
laws, obligatory on all ; he cannot judge whether 

a human mode of thinking, a mode that has unbounded influence over 
each one's happiness. Still less do I mean that other kind of justice 
that has emanated from God, and has its immediate connection with 
the penalties and rewards of a future life. 



CONSEQUENCES. 125 

any one in particular has broken the social compact, 
for in that case the nation would be divided into two 
parties, one represented by the sovereign, asserting 
the violation of such contract ; the other by the 
accused, denying the same. Hence the necessity of 
a third person to judge of the fact ; in other words, of 
a magistrate, whose decisions shall simply consist of 
affirmations or denials of particular facts, and shall 
also be subject to no appeal. 

The third consequence is this : if it were proved 
that the severity of punishments were simply useless 
(to say nothing of being directly opposed to the 
public good and to the very object of preventing 
crimes), even in that case it would be contrary not 
only to those beneficent virtues that flow from an 
enlightened reason, which prefers to rule over happy 
human beings than over a flock of slaves, the 
constant victims of timid cruelty, but it would be 
also contrary to justice and to the nature of the 
social contract itself. 



CHAPTER IV. 

INTERPRETATION OF THE LAWS. 

There is also a fourth consequence of the above 
principles: that the right to interpret penal laws 
cannot possibly rest with the criminal judges, for the 



126 INTERPRETATION OF THE LAWS, 

very reason that they are not legislators. The judges 
have not received the laws from our ancestors as a 
family tradition, as a legacy that only left to posterity 
the duty of obeying them, but they receive them from 
living society, or from the sovereign that represents it 
and is the lawful trustee of the actual result of men's 
collective wills ; they receive them, not as obligations 
arising from an ancient oath * (null, because it bound 
wills not then in existence, and iniquitous, because it 
reduced men from a state of society to that of a 
flock), but as the result of the tacit or expressed oath 
made to the sovereign by the united wills of living 
subjects, as chains necessary for curbing and regu-? 
lating the disorders caused by private interests. This 
is the natural and real source of the authority of 
the laws. 

Who, then, will be the rightful interpreter of the 
laws ? Will it be the sovereign, the trustee of the 
actual wills of all, or the judge, whose sole function 

* If every individual is bound to society, society is no less bound to 
every individual by a contract which is necessarily obligatory on both 
sides. This obligation, which descends from the throne to the cabin, 
which binds equally the greatest and most miserable of men, means 
nothing but that it is the interest of all men that covenants advan- 
tageous to the greater number should be observed. 

The word * obligation ' is one of those which are much more 
frequent in ethics than in any other science, and which are the 
abbreviated symbol of a train of reasoning rather than of a single idea. 
Seek for an idea corresponding to the word 'obligation,' and you will seek 
in vain ; reason about it, and you will both understand yourself and be 
understood by others. 



INTERPRETATION 01 THE LAWS, 127 

it is to examine whether such and such a man has 
committed an illegal act or not ? 

In every criminal case a judge ought to form a 
complete syllogistic deduction, in which the state- 
ment of the general law constitutes the major premiss \ 
die conformity or non-conformity of a particular 
action with the law, the minor premiss \ and acquittal 
or punishment, the conclusion. When a judge is 
obliged) or of his own accord wishes, to make even 
no more than two syllogisms, the door is opened to 
uncertainty. 

Nothing is more dangerous than that common 
axiom, * We must consult the spirit of the laws/ It 
is like breaking down a dam before the torrent of 
opinions. This truth, which seems a paradox to 
(wdinary minds,' more struck as they are by a little 
present inconvenience than by the pernicious but 
remote consequences which flow from a false prin- 
ciple enrooted among a people, seems to me to be 
demonstrated. Our knowledge and all our ideas are 
reciprocally connected together; and the more com- 
plicated they are, the more numerous are the ap- 
proaches to them, and the points of departure. Every 
man has his own point of view — a different one at 
different times ; so that ' the spirit of the laws ' would 
mean the result of good or bad logic on the part of a 
judge, of an easy or difficult digestion; it would de- 
pend now on the violence of his passions, now on the 



128 INTERPRETATION OF THE LAWS, 

feebleness of the sufferer, on the relationship between 
the judge and the plaintiff, or on all those minute 
forces which change the appearances of everything 
in the fluctuating mind of man. Hence it is that we 
see a citizen's fate change several times in his passage 
from one court to another ; that we see the lives of 
wretches at the mercy of the false reasonings or of 
the temporary caprice of a judge, who takes as his 
rightful canon of interpretation the vague result of all 
that confused series of notions which affect his mind. 
Hence it is that we see the same crimes punished 
differently by the same court at different times, 
owing to its having consulted, not the constant and 
fixed voice of the laws, but their unstable and erring 
interpretations. 

No inconvenience that may arise from a strict 
observance of the letter of penal laws is to be com- 
pared with the inconveniences of subjecting them to 
interpretation. The momentary inconvenience in the 
former case involves, indeed, correcting the words of 
the law which are the cause of the uncertainty, a task 
both easy and necessary ; but the fatal licence of argu- 
ing, the source of so many arbitrary and venal dis- 
putes, is thereby prevented. When a fixed code of 
laws, which must be observed to the letter, leaves to 
the judge no further trouble than to inquire into the 
actions of citizens and to decide on their conformity 
to the written law ; when the standard of just and 



INTERPRETATION 01 THE LAWS. 129 

unjust, which should equally direct the actions of the 
Ignorant citizen as of the philosophical one, is not a 
matter of controversy but of fact ; then are people no 
longer subject to the petty tyrannies of many men, 
which are all the more cruel by reason of the smaller 
distance that separates the sufferer from the inflictor 
of suffering, and which are more pernicious than the 
tyrannies of a single man, inasmuch as the despotism 
of many is only curable by that of one, and a despot's 
cruelty is proportioned, not to the power he possesses, 
but to the obstacles he encounters. Under a fixed 
code of laws citizens acquire that consciousness of per- 
sonal security, which is just, because it is the object 
of social existence, and which is useful, because it en- 
ables them to calculate exactly the evil consequences 
of a misdeed. It is true they will also acquire a spirit 
of independence, but not such a spirit as will seek to 
shake the laws and prove rebellious against the chief 
magistrates, except against such of them as have 
dared to apply the sacred name of virtue to a spirit- 
less submission to their own self-interested and 
capricious opinions. These principles will displease 
those who have assumed the right to transfer to their 
subordinates the strokes of tyranny they themselves 
have suffered from their superiors. I personally 
should have everything to fear, if the spirit of tyranny 
and the spirit of reading ever went together. 



I30 



CHAPTER V. 

OBSCURITY OF THE LAWS. 

If the interpretation of laws is an evil, it is clear that 
their obscurity, which necessarily involves interpre- 
tation, must be an evil also, and an evil which will 
be at its worst where the laws are written in any 
other than the vernacular language of a country. 
For in that case the people, being unable to judge of 
themselves how it may fare with their liberty or their 
limbs, are made dependent on a small class of men ; 
and a book, which should be sacred and open to all, 
becomes, by virtue of its language, a private and, so 
to speak, a family manual. 

The greater the number of those who understand 
and have in their hands the sacred code of the laws, 
the fewer will be the crimes committed ; for it is be- 
yond all doubt that ignorance and uncertainty of 
punishments lend assistance to the eloquence of the 
passions. Yet what shall we think of mankind, when 
we reflect, that such a condition of the laws is the 
inveterate custom of a large part of cultivated and 
enlightened Europe ? 

One consequence of these last reflections is, that 
without writing no society will ever assume a fixed 
form of government, wherein the power shall belong to 



OBSCURITY OF THE LAWS, 131 

the social whole, and not to its parts, and wherein the 
laws, only alterable by the general will, shall not suffer 
corruption in their passage through the crowd of pri- 
vate interests. Experience and reason have taught us, 
that the probability and certainty of human traditions 
diminish in proportion to their distance from their 
source. So that if there be no standing memorial of 
the social contract, how will laws ever resist the in- 
evitable force of time and passion ? 

From this we see how useful is the art of printing, 
which makes the public, and not a few individuals, 
the guardians of the sacred laws, and which has scat- 
tered that dark spirit of cabal and intrigue, destined 
to disappear before knowledge and the sciences, which, 
however apparently despised, are in reality feared by 
those that follow in their wake. This is the reason 
that we see in Europe the diminution of those atro- 
cious crimes that afflicted our ancestors and rendered 
them by turns tyrants or slaves. Whoever knows the 
history of two or three centuries ago and of our own, 
can see that from the lap of luxury and effeminacy 
have sprung the most pleasing of all human virtues, 
humanity, charity, and the toleration of human errors ; 
he will know what have been the results of that which 
is so wrongly called 'old-fashioned simplicity and 
honesty.' Humanity groaning under implacable su- 
perstition ; the avarice and ambition of a few dyeing 
with human blood the golden chests and thrones of 

K 2 



132 OBSCURITY OF THE LAWS. 

kings ; secret assassinations and public massacres ; 
every noble a tyrant to the people ; the ministers of 
the Gospel truth polluting with blood hands that 
every day came in contact with the God of mercy — 
these are not the works of this enlightened age, which 
some, however, call corrupt. 



CHAPTER VL 

IMPRISONMENT. 

An error, not less common than it is contrary to the 
object of society — that is, to the consciousness of 
personal security — is leaving a magistrate to be the 
arbitrary executor of the laws, free at his pleasure to 
imprison a citizen, to deprive a personal enemy of his 
liberty on frivolous pretexts, or to leave a friend un- 
punished in spite of the strongest proofs of his guilt. 
Imprisonment is a punishment which, unlike every 
other, must of necessity precede the declaration of 
guilt ; but this distinctive character does not deprive 
it of the other essential of punishment, namely, that 
the law alone shall determine the cases under which 
it shall be merited. It is for the law, therefore, to 
point out the amount of evidence of a crime which 
shall justify the detention of the accused, and his sub- 
jection to examination and punishment. For such 
detention there may be sufficient proofs in common 



IMPRISONMENT. 133' 

report, in a man's flight, in a non-judicial confession, 
or in the confession of an accomplice ; in a man's 
threats against or constant enmity with the person 
injured ; in all the facts of the crime, and similar indi- 
cations. But these proofs should be determined by the 
laws, not by the judges, whose decisions, when they 
are not particular applications of a general maxim 
in a public code, are always adverse to political 
liberty. The more that punishments are mitigated, 
that misery and hunger are banished from prisons, 
that pity and mercy are admitted within their iron 
doors, and are set above the inexorable and har- 
dened ministers of justice, the slighter will be the 
evidences of guilt requisite for the legal detention of 
the suspected. 

A man accused of a crime, imprisoned and acquit 
ted, ought to bear no mark of disgrace. How many 
Romans, accused of the gravest crimes and then found 
innocent, were reverenced by the people and honoured 
with magisterial positions ! For what reason, then, is 
the lot of a man innocently accused so different in our 
own times } Because, in the criminal system now in 
vogue, the idea of force and might is stronger in men's 
minds than the idea of justice ; because accused and 
convicted are thrown in confusion into the same 
dungeon ; because imprisonment is rather a man's 
punishment than his mere custody ; and because the 
two forces which should be united are separated from 



134 IMPRISONMENT, 

one another, namely, the internal force, which protects 
the laws, and the external force, which defends the 
throne and the nation. Were they united, the former, 
through the common sanction of the laws, would pos- 
sess in addition a judicial capacity, although indepen- 
dent of that possessed by the supreme judicial power ; 
and the glory that accompanies the pomp and ceremony 
of a military body would remove the infamy, which, 
like all popular sentiments, is more attached to the 
manner than the thing, as is proved by the fact that 
military prisons are not regarded in public estimation as 
so disgraceful as civil ones. There still remain among 
our people, in their customs and in their laws (always 
a hundred years, in point of merit, in arrear of the 
actual enlightenment of a nation), there still remain, 
I say, the savage impressions and fierce ideas of our 
ancestors of the North. 



CHAPTER VII. 

PROOFS AND FORMS OF JUDGMENT. 

There is a general theorem which is most useful for 
calculating the certainty of a fact, as, for instance, the 
force of the proofs in the case of a given crime : — 

I. When the proofs of a fact are dependent one on 
another — that is to say, when each single proof rests on 



PJiOOFS AND FORMS OF JUDGMENT, 135 

the weight of some other — then the more numerous the 
proofs are, the smaller is the probability of the fact in 
question, because the chances of error in the prelimi- 
nary proofs would increase the probability of error in 
the succeeding ones. 

2. When the proofs of a fact all depend equally 
on a single one, their number neither increases nor 
diminishes the probability of the fact in question, 
because their total value resolves itself into that* of 
the single one on which they depend. 

3. When the proofs are independent of each other 
— that is to say, when they do not derive their value one 
from the other — then the more numerous the proofs 
adduced, the greater is the probability of the fact in 
question, because the falsity of one proof affects in no 
way the force of another. 

I speak of probability in connection with crimes, 
which, to deserve punishment, ought to be proved. But 
the paradox is only apparent, if one reflects that, strictly 
speaking, moral certainty is only a probability, but a 
probability which is called certainty, because every sen- 
sible person necessarily assents to it, by a force of habit 
which arises from the necessity of acting, and which is 
prior to all speculation. The certainty requisite for cer- 
tifying that a man is a criminal is, therefore, the same 
that determines everyone in the most important actions 
of his life. The proofs of a crime may be divided into 
' perfect ' and * imperfect,' the former being of such a 



136 PROOFS AND FORMS OF JUDGMENT. 

nature as exclude the possibility of a man's inno- 
cence, and the latter such as fall short of this certainty. 
Of the first kind one proof alone is sufficient for con- 
demnation ; of the second, or imperfect kind, as many 
are necessary as suffice to make a single perfect proof; 
that is to say, when, though each proof taken sepa- 
rately does not exclude the possibility of innocence, 
yet their convergence on the same point makes such 
innocence impossible. But let it be noted that im- 
perfect proofs, from which an accused has it in his 
power to justify himself and declines to do so, be- 
come perfect. This moral certainty of proofs, how- 
ever, is easier to feel than to define with exactitude : 
for which reason I think that the best law is one which 
attaches to the chief judge assessors, taken by lot, not 
by selection, there being in this case more safety in 
the ignorance which judges by sentiment than in the 
knowledge which judges by opinion. Where the laws 
are clear and precise, the function of a judge consists 
solely in the certification of fact. If for searching out 
the proofs of a crime ability and cleverness are re- 
quired, and if in the presentation of the result clear- 
ness and precision are essential, all that is required to 
judge of the result is simple and common good sense, 
a faculty which is less fallacious than the learning of 
a judge, accustomed as he is to wish to find men guilty 
and to reduce everything to an artificial system bor- 
rowed from his studies. Happy the nation where the 



PROOFS AND FORMS OF JUDGMENT, 137 

laws are not a science ! It is a most useful law that 
everyone shall be judged by his equals, because where 
a citizen's liberty and fortune are at stake those senti- 
ments which inequality inspires should have no voice ; 
that feeling of superiority with which the prosperous 
man regards the unfortunate one, and that feeling of 
dislike with which an inferior regards his superior, have 
no scope in a judgment by one's equals. But when the 
crime in question is an offence against a person of a 
different rank from the accused, then one half of the 
judges should be the equals of the accused, the other 
half equals of the plaintiff, that so, every private interest 
being balanced, by which the appearances of things 
are involuntarily modified, only the voice of the laws 
and of truth may be heard. It is also in accordance 
with justice that an accused person should have 
power up to a certain point of refusing judges whom 
he may suspect ; and if he is allowed the exercise of this 
power for some time without opposition, he will seem 
to condemn himself. Verdicts should be public, and 
the proofs of guilt public, in order that opinion — 
which is, perhaps, the only bond of society there is — 
may place a check on outbursts of force and passion, 
and that the people may say, *We are not slaves 
without defence ' : a feeling which both inspires them 
with courage and is as good as a tribute to a sovereign 
who understands his real interest. I refrain from 
pointing out other details and precautions which 



138 PROOFS AND FORMS OF JUDGMENT. 

require similar regulations. I should have said no- 
thing at all, had it been necessary for me to say 
everything. 

CHAPTER VIII. 

WITNESSES. 

It is a great point in every good system of laws to 
determine exactly the credibility of witnesses and the 
proofs of guilt. Every reasonable man — that is, every 
man with a certain connection between his ideas and 
with feelings . like those of other men —is capable of 
bearing witness. The true measure of his credibility 
is only the interest he has in speaking or in not 
speaking the truth ; so that nothing can be more 
frivolous than to reject the evidence of women on the 
pretext of their feebleness, nothing more childish 
than to apply the results of real death to civil death 
as regards the testimony of the condemned, nothing 
more unmeaning than to insist on the mark of 
infamy in the infamous when they have no interest 
in lying. 

Among other abuses of grammar, which have no 
slight influence on human affairs, that one is notable 
which makes the evidence of a condemned criminal 
null and void. * He is dead civilly^ say gravely the 
peripatetic lawyers, * and a dead man is incapable of 
any action.' In support of this silly metaphor many 



WITNESSES, 159 

victims have been sacrificed, and it has very often 
been disputed with all seriousness whether the truth 
should not yield to judicial formulas. Provided that 
the testimony of a condemned criminal does not go 
to the extent of stopping the course of justice, why 
should not a fitting period be allowed, even after 
condemnation, both to the extreme wretchedness of 
the criminal and to the interests of truth, so that, by 
his adducing fresh matter to alter the complexion of 
the fact, he may justify himself or others in a new 
trial ? Forms and ceremonies are necessary in the 
administration of justice, because they leave nothing 
to the free will of the administrator ; because they 
give the people an idea of a justice which is not 
tumultuary and self-interested, but steadfast and 
regular ; and because men, the slaves of habit and 
imitation, are more influenced by their feelings than 
by arguments. But such forms can never without 
fatal danger be so firmly fixed by the laws as to be 
injurious to truth, which from being either too simple 
or two complex needs some external pomp to con- 
ciliate the Ignorant populace. 

The credibility, therefore, of a witness must dimi- 
nish in proportion to the hatred, friendship, or close 
connection between himself and the accused. More 
than one witness is necessary, because, so long as one 
affirms and another denies, nothing is proved, and the 
right which everyone has of being held innocent pre- 



I40 WITNESSES, 

vails. The credibility of a witness becomes appre- 
ciably less, the greater the atrocity of the crime im- 
puted/ or the improbability of the circumstances, as 
in charges of magic and gratuitously cruel actions. 
It is more likely, as regards the former accusation, that 
many men should lie than that such an accusation 
should be true, because it is easier for many men to 
be united in an ignorant mistake or in persecuting 
hatred than for one man to exercise a power which 
God either has not conferred or has taken away from 
every created being. The same reasoning holds good 
also of the second accusation, for man is only cruel 
in proportion to his interest to be so, to his hatred or 

* According to the criminalists the greater the atrocity of the crime 
the greater the credibility of the witness. Look at the iron maxim 
dictated by the most cruel stupidity : In atrocissimis leviores conjecture 
sufficiunt, ei licet judici jura transgredi. Translate this into common 
language, and Europeans will see one of the very many and equally 
senseless rules to which almost without knowing it they are subject : 
In the most atrocious crimes (that is, in the least probable) the slightest 
conjectures are enough, and the judge may legitimately exceed the law. 
Absurd legal practices are often the result of fear, which is the 
principal source of all human contradictions. Legislators (who are 
really only lawyers, authorised by chance to decide about everything, 
and to become from interested and venal writers arbiters and legislators 
about the fortunes of men), alarmed by the condemnation of some 
innocent person, have loaded jurisprudence with superfluous formalities 
and exceptions, the exact observance of which would cause anarchy 
to sit with impunity on the throne of justice. In their fright at some 
crimes of an atrocious nature and difficult to prove, they thought them- 
selves under the necessity of getting over the very formalities established 
by themselves ; and so, now with despotic impatience, now with 
feminine timidity, they have transformed grave trials into a kind of 
play, in which hazard and subterfuge act the principal part. 



WITNESSES. 141 

to his fear. Properly speaking, there is no superfluous 
feeling in human nature, every feeling being always in 
strict accordance with the impressions made upon the 
senses. In the same way the credibility of a witness 
may sometimes be lessened by the fact of his being a 
member of some secret society, whose purposes and 
principles are either not well understood or differ 
from those of general acceptance; for such a man 
has not only his own passions but those of others 
besides. 

Lastly, a witness's evidence is almost null when 
spoken words are construed into a crime. For the 
tone, the gesture, all that precedes or follows the 
different ideas attached by men to the same words, 
so alter and modify a man's utterances, that it is 
almost impossible to repeat them ^xactly as they 
were spoken. Moreover, actions of a violent and un- 
usual character, such as real crimes are, leave their 
traces in the numberless circumstances and effects 
that flow from them ; and of such actions the greater 
the number of the circumstances adduced in proof, 
the more numerous are the chances for the accused 
to clear himself. But words only remain in the 
memory of their hearers, and memory is for the most 
part unfaithful and often deceitful. It is on that 
account ever so much more easy to fix a calumny 
upon a man's words than upon his actions. 



142 



CHAPTER IX. 

SECRET ACCUSATIONS. 

Palpable but consecrated abuses, which in many 
nations are the necessary results of a weak political 
constitution, are Secret Accusations. For they render 
men false and reserved, and whoever may suspect 
that he sees in his neighbour an informer will see in 
him an enemy. Men then come to mask their real 
feelings, and by the habit of hiding them from others 
they at last get to hide them from themselves. Un- 
happy they who have come to that ; who, without clear 
and fixed principles to guide them, wander lost and 
confused in the va§t sea of opinions, ever busied in 
saving themselves from the horrors that oppress them, 
with the present moment ever embittered by the un- 
certainty of the future, and without the lasting plea- 
sures of quiet and security, devouring in unseemly 
haste those few pleasures, which occur at rare intervals 
in their melancholy lives and scarcely console them for 
the fact of having lived ! Is it of such men we can hope 
to make intrepid soldiers, defenders of their country 
and crown ? Is it among such men we shall find in- 
corrupt magistrates, able with their free and patriotic 
eloquence to sustain and develop the true interests of 
their sovereign, ready, with the tribute they bear, to 



SECRET ACCUSATIONS. 143 

carry to the throne the love and blessings of all classes 
of men, and thence to bring back to palaces and cot- 
tages alike peace and security, and that active hope 
of ameliorating their lot which is so useful a leaven, 
nay, which is the life of States ? 

Who can protect himself from calumny, when it is 
armed by the strongest shield of tyranny, secrecy? 
What sort of government can that ever be where in 
every subject a ruler suspects an enemy, and is obliged 
for the sake of the general tranquillity to rob each 
individual of its possession ? 

What are the pretexts by which secret accusations 
and punishments are justified ? Are they the public 
welfare, the security and maintenance of the form of 
government ? But how strange a constitution is that, 
where he who has force on his side, and opinion, which 
is even stronger than force, is afraid of every citizen ! 
Is then the indemnity of the accuser the excuse ? In 
that case the laws do not sufficiently defend him ; and 
shall there be subjects stronger than their sovereign ? 
Or is it to save the informer from infamy ? What ! 
secret calumny be fair and lawful, and an open one 
deserving of punishment ! Is it, then, the nature of 
the crime ? If indifferent actions, or even useful ac- 
tions, are called crimes, then of course accusations and 
trials can never be secret enough. But how can there 
be crimes, that is, public injuries, unless the publicity 
of this example, by a public trial, be at the same time 



144 SECRET A CCUSA TIONS, 

the interest of all men? I respect every govern- 
ment, and speak of none in particular. Circumstances 
are sometimes such that to remove an evil may seem 
utter ruin when it is inherent in a national system. 
But had I to dictate new laws in any forgotten corner 
of the universe, my hand would tremble and all pos- 
terity would rise before my eyes before I would autho- 
rise such a custom as that of secret accusations. 

It has already been remarked by Montesquieu that 
public accusations are more suited to republics, where 
the public good ought to be the citizens* first passion, 
than to monarchies, where such a sentiment is very 
feeble, owing to the nature of the government itself, 
and where the appointment of officers to accuse trans- 
gressors of the law in the name of the public is a most 
excellent institution. But every government, be it 
republican or monarchical, ought to inflict upon a 
false accuser the same punishment which, had the 
accusation been true, would have fallen upon the 
accused. 



CHAPTER X. 

SUGGESTIVE INTERROGATIONS — DEPOSITIONS. 

Our laws prohibit suggestive (leading) questions in a 
lawsuit : those, that is (according to the doctors of 
law), which, instead of applying, as they should do. 



SUGGESTIVE mTERROGATIONS, 145 

to the genus in the circumstances pf a crime, refer to 
the species \ those, in other words, which from their 
immediate connection with a crime suggest to the 
accused a direct answer. Questions, according to the 
criminal lawyers, ought, so to speak, * to envelop the 
main fact spirally and never to attack it in a direct 
line/ The reasons for this method are, either that an 
answer may not be suggested to the accused which 
may place him face to face with the charge against 
him, or perhaps because it seems unnaturad for him 
directly to criminate himself. But, whichever of these 
reasons it may be, the contradiction is remarkable 
between the existence of such a custom and the legal 
authorisation of torture ; for what interrogatory can 
be more suggestive than pain } The former reason 
applies to the question of torture, because pain will 
suggest to a strong man obstinate silence, in order 
that he may exchange the greater penalty for the 
lesser, whilst it will suggest to a weak man confession, 
in order that he may escape from present torment, 
which has more influence over him than pain which 
is to come. The other reason evidently applies too, 
for if a special question leads a man to confess against 
natural right, the agonies of torture will more easily 
do the same. But men are more governed by the 
difference of names than by that of things. 

Finally, a man who, when examined, persists in an 
obstinate refusal to answer, deserves a punishment- 

L 



146 SUGGESTIVE INTERROGATIONS, 

fixed by the laws, and one of the heaviest they can 
inflict, that men may not in this way escape the 
necessary example they owe to the public. But this 
punishment is not necessary when it is beyond all 
doubt that such a person has committed such a crime, 
questions being useless, in the same way that confes- 
sion is, when other proofs sufficiently demonstrate 
guilt. And this last case is the most usual, for ex- 
perience proves that in the majority of trials the 
accused are wont to plead * Not guilty.* 



CHAPTER XL 

OATHS. 

A CONTRADICTION between the laws and the natural 
feelings of mankind arises from the oaths which are 
required of an accused, to the effect that he will be 
a truthful man when it is his greatest interest to be 
false ; as if a man could really swear to contribute to 
his own destruction, or as if religion would not be 
silent with most men when their interest spoke on 
the other side. The experience of all ages has 
shown that men have abused religion more than any 
other of the precious gifts of heaven ; and for what 
reason should criminals respect it, when men es- 
teemed as the wisest have often violated it.^ Too 
weak, because too far removed from the senses, are 



OATHS, 147 

for the mass of people the motives which reh'gion 
opposes to the tumult of fear and the love of life. 
The affairs of heaven are conducted by laws abso- 
lutely different from those which govern human 
affairs ; so why compromise those by these ? Why 
place men in the terrible dilemma of either sinning 
against God or concurring in their own ruin ? The 
law, in fact, which enforces such an oath commands a 
man either to be a bad Christian or to be a martyr. 
The oath becomes gradually a mere formality, thus 
destroying the force of religious feelings, which for 
the majority of men are the only pledge of their 
honesty. How useless oaths are has been shown by 
experience, for every judge will bear me out when I 
say that no oath has ever yet made any criminal 
speak the truth ; and the same thing is shown by 
reason, which declares all laws to be useless, and con- 
sequently injurious, which are opposed to the natural 
sentiments of man. Such laws incur the same fate 
as dams placed directly in the main stream of a river : 
either they are immediately thrown down and over- 
whelmed, or a whirlpool formed by themselves cor- 
rodes and undermines them imperceptibly. 



L2 



148 



CHAPTER XII. 

TORTURE. 

A CRUELTY consecrated among most nations by 
custom is the torture of the accused during his trial, 
on the pretext of compelling him to confess his 
crime, of clearing up contradictions in his statements, 
of discovering his accomplices, of purging him in 
some metaphysical and incomprehensible way from 
infamy, or finally of finding out other crimes of which 
he may possibly be guilty, but of which he is not 
accused. 

A man cannot be called guilty before sentence 
has been passed on him by a judge, nor can society 
deprive him of its protection till it has been decided 
that he has broken the condition on which it was 
granted. What, then, is that right but one of mere 
might by which a judge is empowered to inflict a 
punishment on a citizen whilst his guilt or innocence 
are still undetermined.? The following dilemma is 
no new one : either the crime is certain or uncertain ; 
if certain, no other punishment is suitable for it than 
that affixed to it by law ; and torture is useless, for 
the same reason that the criminal's confession is 
useless. If it is uncertain, it is wrong to torture an 



TORTURE. 149 

innocent person, such as the law adjudges him to be, 
whose crimes are not yet proved. 

What is the political object of punishments? 
The intimidation of other men. But what shall we 
say of the secret and private tortures which the 
tyranny of custom exercises alike upon the guilty 
and the innocent ? It is important, indeed, that no 
open crime shall pass unpunished ; but the public 
exposure of a criminal whose crime was hidden in 
darkness is utterly useless. An evil that has been 
done and cannot be undone can only be punished by 
civil society in so far as it may affect others with the 
hope of impunity. If it be true that there are a 
greater number of men who either from fear or 
virtue respect the laws than of those who transgress 
them, the risk of torturing an innocent man should be 
estimated according to the probability that any man 
will have been more likely, other things being equal, 
to have respected than to have despised the laws. 

But I say in addition : it is to seek to confound all 
the relations of things to require a man to be at the 
same time accuser and accused, to make pain the 
crucible of truth, as if the test of it lay in the muscles 
and sinews of an unfortunate wretch. The law which 
ordains the use of torture is a law which says to men : 
* Resist pain ; and if Nature has created in you an inex- 
tinguishable self-love, if she has given you an inalien- 
able right of self-defence, I create in you a totally 



ISO TORTURE. 

Contrkiy affection, namely, an heroic self-hatred, and 
I command yon to accuse yourselves, and to speak 
the truth between the laceratioa of your muscles and 
the dislocation of your bones.' 

This infamous crucible of truth is a still-existing 
monument of that primitive and savage legal system, 
which called trials by fire and boiling water, or the 
accidental decisions of combat, jtidgments of Gody as 
if the rings of the eternal chain in the control of the 
First Cause must at every moment be disarranged 
and put out for the petty institutions of mankind. 
The only difference between torture and the trial by 
fire and water is, that the result of the former seems 
to depend on the will of the accused, and that of the 
other two on a fact which is purely physical and 
extrinsic to the sufferer; but the difference is only 
apparent, not real. The avowal of truth under 
tortures and agonies is as little free as was in those 
times the prevention without fraud of the usual 
effects of fire and boiling water. Every act of our 
will is ever proportioned to the force of the sensible 
impression which causes it, and the sensibility of 
every man is limited. Hence the impression pro- 
duced by pain may be so intense as to occupy a 
man's entire sensibility and leave him no other 
liberty than the choice of the shortest way of escape, 
for the present moment, from his penalty. Under 
such circumstances the answer of the accused is as 



TORTURE, 151 

inevitable as the impressions produced by fire and 
water; and the innocent man who is sensitive will 
declare himself guilty, when by so doing he hopes 
to bring his agonies to an end. All the difference 
between guilt and innocence is lost by virtue of the 
very means which they profess to employ for its 
discovery. 

Torture is a certain method for the acquittal of 
robust villains and for the condemnation of inno- 
cent but feeble men. See the fatal drawbacks of 
this pretended test of truth — a test, indeed, that is 
worthy of cannibals ; a test which the Romans, bar- 
barous as they too were in many respects, reserved 
for slaves alone, the victims of their fierce and too 
highly lauded virtue. Of two men, equally innocent 
or equally guilty, the robust and courageous will be 
acquitted, the weak and the timid will be condemned, 
by virtue of the following exact train of reasoning on 
the part of the judge: *I as judge had to find you 
guilty of such and such a crime ; you, A B, have by 
your physical strength been able to resist pain, and 
therefore I acquit you ; you, C D, in your weakness 
have yielded to it ; therefore I condemn you. I feel 
that a confession extorted amid torments can have no 
force, but I will torture you afresh unless you corro- 
borate what you have now confessed.* 

The result, then, of torture is a matter of tempera- 
ment, of calculation, which varies with each man ac- 



152 TORTURE. 

cording to his strength and sensibility ; so that by this 
method a mathematician might solve better than a 
judge this problem : ' Given the muscular force and 
the nervous sensibility of an innocent man, to find the 
degree of pain which will cause him to plead guilty 
to a given crime.' 

The object of examining an accused man is the 
ascertainment of truth. But if this truth is difficult to 
discover from a man's air, demeanour, or countenance, 
even when he is quiet, much more difficult will it be 
to discover from a man upon whose face all the signs, 
whereby most men, sometimes in spite of themselves, 
express the truth, are distorted by pain. Every vio- 
lent action confuses and* causes to disappear those 
trifling differences between objects, by which one may 
sometimes distinguish the true from the false. 

A strange consequence that flows naturally from 
the use of torture is, that an innocent man is- thereby 
placed in a worse condition than a guilty one, because 
if both are tortured the former has every alternative 
against him. For either he confesses the crime and 
is condemned, or he is declared innocent, having suf- 
fered an undeserved punishment But the guilty 
man has one chance in his favour, since, if he resist 
the torture firmly, and is acquitted in consequence, 
he has exchanged a greater penalty for a smaller one. 
Therefore the innocent man can only lose, the guilty 
may gain, by torture. 



TORTURE. 153 

This truth is, in fact, felt, though in a confused 
way, by the very persons who place themselves far- 
thest from it. For a confession made under torture 
is of no avail unless it be confirmed by an oath made 
after it ; and yet, should the criminal not confirm 
his confession, he is tortured afresh. Some doctors 
of law and some nations only allow this infamous 
begging of the question to be employed three times ; 
whilst other nations and other doctors leave it to the 
discretion of the judge. 

It were superfluous to enlighten the matter more 
thoroughly by mentioning the numberless instances of 
innocent persons who have confessed themselves guilty 
from the agonies of torture ; no nation, no age, but can 
mention its own ; but men neither change their natures 
nor draw conclusions. There is no man who has ever 
raised his ideas beyond the common needs of life but 
runs occasionally towards Nature, who with secret 
and confused voice calls him to herself ; but custom, 
that tyrant of human minds, draws him back and 
frightens him. 

The second pretext for torture is its application 
to supposed criminals who contradict themselves 
under examination, as if the fear of the punishment, 
the uncertainty of the sentence, the legal pageantry, 
the majesty of the judge, the state of ignorance that is 
common alike to innocent and guilty, were not enough 
to plunge into self-contradiction both the innocent man 



154 TORTURE. 

who IS afraid^ and the guilty man who seeks to shield 
himself; as if contradictions, common enough when 
men are at their ease, were not likely to be multiplied, 
when the mind is perturbed and wholly absorbed in 
the thought of seeking safety from imminent peril. 

Torture, again, is employed to discover if a criminal 
is guilty of other crimes besides those with which he 
is charged. It is as if this argument were employed : 
* Because you are guilty of one crime you may be 
guilty of a hundred others. This doubt weighs upon 
me : I wish to ascertain about it by my test of truth : 
the laws torture you because you are guilty, be- 
cause you may be guilty, because I mean you to be 
guilty.' 

Torture, again, is inflicted upon an accused man in 
order to discover his accomplices in crime. But if it 
is proved that it is not a fitting method for the dis- 
covery of truth, how will it serve to disclose accom- 
plices, which is part of the truth to be discovered } 
As if a man who accuses himself would not more 
readily accuse others. And is it just to torment men 
for the crimes of others } Will not the accomplices 
be disclosed from the examination of the witnesses 
and of the accused, from the proofs and whole cir- 
cumstances of the crime ; in sum, from all those very 
means which should serve to convict the accused 
himself of guilt } Accomplices generally fly imme- 
diately after the capture of a companion ; the un- 



TORTURE. ISS 

certainty of their lot of itself condemns them to 
exile, and frees the country from the danger of fresh 
offences from them ; whilst the punishment of the 
criminal who is caught attains its precise object, 
miiiely, the averting of other men by terror fnim a 
similar crime. 

Another ridiculous reason for torture is the purga- 
tion from infamy ; that is to say, a man judged in- 
famous by the laws must confirm his testimony by 
the dislocation of his bones. This abuse ought not to 
be tolerated in the eighteenth century. It is believed 
that pain, which is a physical sensation, purges from 
infamy, which is merely a moral condition. Is pain, 
then, a crucible, and infamy a mixed impure sub- 
stance } But infamy is a sentiment, subject neither 
to laws nor to reason, but to common opinion. Tor- 
ture itself causes real infamy to the victim of it. So 
the result is, that by this method infamy will be taken 
away by the very fact of its infliction ! 

It is not difficult to go back to the origin of this 
ridiculous law, because the absurdities themselves 
that a whole nation adopts have always some con- 
nection with other common ideas which the same 
nation respects. The custom seems to have been 
derived from religious and spiritual ideas, which have 
so great an influence on the thoughts of men, on 
nations, and on generations. An infallible dogma 
assures us, that the stains contracted by human weak- 



IS6 TORTURE, 

ness and undeserving of the eternal anger of the 
Supreme Being must be purged by an incomprehen- 
sible fire. Now, infamy is a civil stain ; and as pain 
and fire take away spiritual and incorporeal stains, 
why should not the agonies of torture take away the 
civil stain of infamy ? I believe that the confession 
of a criminal, which some courts insist on as an essen- 
tial requisite for condemnation, has a similar origin \— 
because in the mysterious tribunal of repentance the 
confession of sins is an essential part of the sacrament. 
This is the way men abuse the surest lights of revela- 
tion ; and as these are the only ones which exist in 
times of ignorance, it is to them on all occasions that 
docile humanity turns, making of them the most ab • 
surd and far-fetched applications. 

These truths were recognised by the Roman legis- 
lators, for they inflicted torture only upon slaves, who 
in law had no personality. They have been adopted 
by England, a nation, the glory of whose literature, 
the superiority of whose commerce and wealth, and 
consequently of whose power, and the examples of 
whose virtue and courage leave us no doubt as to the 
goodness of her laws. Torture has also been abolished 
in Sweden ; it has been abolished by one of the wisest 
monarchs of Europe, who, taking philosophy with him 
to the throne, has made himself the friend and legis- 
lator of his subjects, rendering them equal and free in 
their dependence on the laws, the sole kind of equality 




TORTURE, 157 

and liberty that reasonable men can ask for in the 
present condition of things. Nor has torture been 
deemed necessary in the laws which regulate armies, 
composed though they are for the most part of the 
dregs of different countries, and for that reason more 
than any other class of men the more likely to require 
it. A strange thing, for whoever forgets the power 
of the tyranny exercised by custom, that pacific laws 
should be obliged to learn from minds hardened to 
massacre and bloodshed the most humane method of 
conducting trials. 



CHAPTER XIII. 

PROSECUTIONS AND PRESCRIPTIONS. 

As soon as the proofs of a crime and its reality 
are fully certified, the criminal must be allowed time 
and opportunity for his defence; but the time al- 
lowed must be so short as not to interfere with the 
speediness of his punishment, which, as we have seen, 
is one of the principal restraints from crime. A false 
philanthropy seems opposed to this shortness of time ; 
but all doubt will vanish, on reflection that the more 
defective any system of law is, the greater are the 
dangers to which innocence is exposed. 

But the laws should fix a certain space of time 
both for the defence of the accused and for the dis- 



158 PROSECUTIONS AND PRESCRIPTIONS. 

covery of proofs against him. It would place the 
judge in the position of a legislator were it his duty 
to fix the time necessary for the latter. In the same 
way those atrocious crimes, whose memory tarries 
long in men's minds, deserve, when once proved, no 
prescription in favour of a criminal who has fled 
from his country; but lesser and obscure crimes 
should be allowed a certain prescription, which may re- 
move a man's uncertainty concerning his fate, because 
the obscurity in which for a long time his crimes have 
been involved deducts from the bad example of his 
impunity, and the possibility of reform meantime 
remains to him. It is enough to indicate these prin- 
ciples, because I cannot fix a precise limit of time, 
except for a given system of laws and in given social 
circumstances. I will only add that, the advantage 
of moderate penalties in a nation being proved, the 
laws which shorten or lengthen, according to the gravity 
of crimes, the term of prescription or of proofs, thus 
making of prison itself or of voluntary exile a part 
of the punishment, will supply an easy classification 
of a few mild punishments for a very large number of 
crimes. 

But these periods of time will not be lengthened 
in exact proportion to the atrocity of crimes, since the 
probability of a crime is in inverse ratio to its atrocity. 
It will, then, be necessary to shorten the period for 
inquiry and to increase that of prescription ; -which 



PROSECUTIONS AND PRESCRIPTIONS, 159 

may appear to contradict what I said before, namely, 
that it is possible to inflict equal penalties on unequal 
crimes, by counting as a penalty that period of im- 
prisonment or of prescription which precedes the ver- 
dict. To explain to the reader mj idea : I distinguish 
two kinds of crimes — the first, atrocious crimes, be- 
ginning with homicide and including all the exces- 
sive forms of wickedness ; the second comprising less 
considerable crimes. This distinction is founded in 
human nature. Personal security is a natural right, the 
security of property a social one. The number of mo- 
tives which impel men to violate their natural affections 
is far smaller than those which impel them, by their 
natural longing for happiness, to violate a right which 
they do not find written in their hearts but only in 
the conventions of society. The very great difference 
between the probability of these two kinds of crime 
respectively makes it necessary that they should be 
ruled by different principles. In cases of the more 
atrocious crimes, because they are more uncommon, 
the time for inquiry ought to be so much the less as 
the probability of the innocence of the accused \s 
greater; and the time of prescription ought to be 
longer, as on an ultimate definite sentence of guilt or 
innocence depends the destruction of the hope of 
impunity, the harm of which is proportioned to the 
atrocity of the crime. But in cases of lesser crimi- 
nality, where the presumption in favour of a man's 



i6o PROSECUTIONS AND PRESCRIPTIONS, 

innocence is less, the time for inquiry should be 
longer ; and as the harm of impunity is less, the time 
of prescription should be shorter. But such a division 
of crimes ought, indeed, not to be admitted, if the 
danger of impunity decreased exactly in proportion 
to the greater probability of the crime. One should 
remember that an accused man, whose guilt or inno- 
cence is uncertain, may, though acquitted for lack of 
proofs, be subjected for the same crime to a fresh im- 
prisonment and inquiry, in the event of fresh legal 
proofs rising up against him, so long as the time of 
prescription accorded by the laws has not been past. 
Such at least is the compromise that I think best fitted 
to preserve both the liberty and the security of the 
subject, it being only too easy so to favour the one at 
the expense of the other, that these two blessings, the 
inalienable and equal patrimony of every citizen, are 
left unprotected and undefended, the one from declared 
or veiled despotism, the other from the turbulence of 
civil anarchy. 

There are some crimes which are at the same time 
of common occurrence and of difficult proof In them 
the difficulty of proof is equivalent to a probability 
of innocence ; and the harm of their impunity being 
so much the less to be considered as their frequency 
depends on principles other than the risk of punish- 
ment, the time for inquiry and the period of pre- 
scription ought both to be proportionately less. Yet 



PJiOSECU:TIONS AND PRESCRIPTIONS. i6i 

cases of adultery and pederasty, both of difficult 
proof, are precisely those in which, according to re- 
ceived principles, tyrannical presumptions of quasi- 
proofs and half-proofs are allowed to prevail (as if 
a man could be half-innocent or half-guilty^ in other 
words, half-punishable or half-acquittable) ; in which 
torture exercises its cruel sway over the person of 
the accused, over the witnesses, and even over the 
whole family of an unfortunate wretch, according to 
the coldly wicked teaching of some doctors of law, 
who set themselves up as the rule and standard for 
judges to follow. 

In view of these principles it will appear strange 
(to anyone who does not reflect, that reason has, so to 
speak, never yet legislated for a nation), that it is just 
the most atrocious crimes or the most secret and chi- 
merical ones — that is, those of the least probability — 
which are proved by conjectures or by the weakest 
and most equivocal proofs : as if it were the interest 
of the laws and of the judge, not to search for the 
truth, but to find out the crime ; as if the danger of 
condemning an innocent man were not so much the 
greater, the greater the probability of his innocence 
over that of his guilt. 

The majority of mankind lack that vigour which 
is equally necessary for the greatest crimes as for the 
greatest virtues ; whence it would appear, that both 
extremes are contemporaneous phenomena in nations 

M 



i62 PROSECUTIONS AND PRESCRIPTIONS, 

which depend rather on the energy of their govern- 
ment and of the passions that tend to the public 
good, than on their size and the constant goodness 
of their laws. In the latter the weakened passions 
seem more adapted to maintain than to improve the 
form of government. From which flows an important 
consequence, namely, that great crimes in a nation do 
not always prove its decline. 



CHAPTER XIV. 

CRIMINAL ATTEMPTS, ACCOMPLICES, IMPUNITY. 

It does not follow, because the laws do not punish in- 
tentions, that therefore a crime begun by some action, 
significative of the will to complete it, is undeserving 
of punishment, although it deserves less than z, crime 
actually committed. The importance of preventing 
an attempt at a crime justifies a punishment ; but, as 
there may be an interval between the attempt and the 
execution, the reservation of a greater punishment 
for a consummated crime may present a motive for 
its non-completion. 

The same may be said, though for a different rea- 
son, where there are several accomplices of a crime, not 
all of them its immediate perpetrators. When several 
men join together in an undertaking, the greater its 



ATTEMPTS, ACCOMPLICES, IMPUNITY, 163 

risk IS, the more will they seek to make it equal for 
all of them ; the more difficult it will be, therefore, to 
find one of them who will be willing to put the deed 
into execution, if he thereby incurs a greater risk than 
that incurred by his accomplices. The only exception 
would be where the perpetrator received a fixed re- 
ward, for then, the perpetrator having a compensation 
for his greater risk, the punishment should be equalised 
between him and his accomplices. Such reflections 
may appear too metaphysical to whosoever does not 
consider that it is of the utmost advantage for the 
laws to afford as few grounds of agreement as possible 
between companions in crime. 

Some courts promise impunity to an accomplice 
in a serious crime who will expose his companions, 
an expedient that has its drawbacks as well as its 
advantages. Among the former must be counted the 
national authorisation of treachery, a practice which 
even criminals detest ; for crimes of courage are less 
pernicious to a people than crimes of cowardice, cou- 
rage being no ordinary quality, and needing only a 
beneficent directing force to make it conduce to the 
public welfare, whilst cowardice is more common and 
contagious, and always more self-concentrated than 
the other. Besides, a tribunal which calls for the aid 
of the law-breaker proclaims its own uncertainty and 
the weakness of the laws themselves. On the other 
hand, the advantages of the practice are, the prevention 

M 2 



l64 ATTEMPTS, ACCOMPLICES^ IMPUNITY, 

of crimes and the intimidation of the people, owing to 
the fact that the results are visible whilst the authors 
remain hidden ; moreover, it helps to show that a man 
who breaks his faith to the laws, that is, to the public, 
is likely also to break it in private life. I think that 
a general law promising impunity to an accomplice 
who exposes a crime would be preferable to a special 
declaration in a particular case, because in this way the 
mutual fear which each accomplice would have of his 
own risk would tend to prevent their association ; the 
tribunal would not make criminals audacious by show- 
ing that their aid was called for in a particular case. 
Such a law, however, should accompany impunity with 
the banishment of the informer. . . . But to no pur- 
pose do I torment myself to dissipate the remorse I 
feel in authorising the inviolable laws, the monument 
of public confidence, the basis of human morality, 
to resort to treachery and dissimulation. What an 
example to the nation it would be, were the promised 
impunity not observed, and were the man who had 
responded to the invitation of the laws dragged by 
learned quibbles to punishment, in spite of the public 
troth pledged to him ! Such examples are not rare 
in different countries ; neither, therefore, is the number 
small, of those who consider a nation in no other light 
than in that of a complicated machine, whose springs 
the cleverest and the strongest move at their will. 
Cold and insensible to all that forms the delight of 



ATTEMPTS, ACCOMPLICES, IMPUNITY. 165 

tender and sensitive minds, they arouse, with imper- 
turbable sagacity, either the softest feelings or the 
strongest passions, as soon as they see them of service, 
to the object they have in view, handling men's minds 
just as musicians do their instruments. 



CHAPTER XV. 

THE MILDNESS OF PUNISHMENTS. 

From the simple consideration of the truths hitherto 
demonstrated it is evident that the object of pun- 
ishment is neither to torment and inflict a sensitive 
creature nor to undo a crime already committed. 
Can he, whose function it is, so far from acting from 
passion, to tranquillise the private passions of his fel- 
lows, harbour in the body politic such useless cruelty, 
the instrument either of furious fanatics or of weak 
tyrants ? Shall perchance the shrieks of an unhappy 
wretch call back from never-receding time actions 
already executed ? The object, therefore, of punish- 
ment is simply to prevent the criminal from injuring 
anew his fellow-citizens, and to deter others from 
committing similar injuries ; and those punishments 
and that method of inflicting them should be preferred 
which, duly proportioned to the offence, will produce 
a more efficacious and lasting impression on the 



l66 MILDNESS OF PUNISHMENTS. 

minds of men and inflict the least torture on the 
body of a criminal. 

Who can read history without being horror-struck 
at the barbarous and useless torments which men, 
who were called wise, in cold blood devised and 
executed ? Who is there but must feel his blood 
boil, when he regards the thousands of wretches 
whom misery, either intended or tolerated by the laws 
(which have always favoured the few and outraged 
the many), has driven to a desperate return to the 
original state of nature ; when he sees them either 
accused by men endowed with the same senses, and 
consequently with the same passions as themselves, 
of impossible crimes, the fiction of timid ignorance, 
or guilty of nothing but fidelity to their own prin- 
ciples ; and when he sees them lacerated by slow 
tortures, subject to well-contrived formalities, an 
agreeable sight for a fanatical multitude ? 

In order that a punishment may attain its object, 
it is enough if the evil of the punishment exceeds 
the advantage of the crime, and in this excess of evil 
the certainty of punishment and the loss of the pos- 
sible advantage from the crime ought to be considered 
as part ; all beyond this is superfluous and conse- 
quently tyrannical. Men regulate their conduct by 
the reiterated impression of evils they know, not by 
reason of evils they ignore. Given two nations, in 
one of which, in the scale of punishments proportioned 



MILDNESS OF PUNISHMENTS. 167 

to the scale of crimes, the severest penalty is perpetual 
servitude, and in the other the wheel ; I say that the 
former will have as great a dread of its severest pun- 
ishment as the latter will have ; and if there be any 
reason for transporting to the former country the 
greater penalties of the other, the same reasoning will 
serve for increasing still more the penalties of this 
latter country, passing imperceptibly from the wheel 
to the slowest and most elaborate tortures, nay, even 
to the last refinements of that science which tyrants 
understand only too well. 

The more cruel punishments become, the more hu- 
man minds harden, adjusting themselves, like fluids, 
to the level of objects around them ; and the ever 
living force of the passions brings it about, that after 
a hundred years of cruel punishments, the wheel 
frightens men only just as much as at first did the 
punishment of prison. 

The very severity of a punishment leads men to 
dare so much the more to escape it, according to the 
greatness of the evil in prospect ; and many crimes 
are thus committed to avoid the penalty of a single 
one. Countries and times where punishments have 
been most severe haf^e ever been those where the 
bloodiest and most inhuman deeds have been com- 
mitted, the same spirit of ferocity that guided the 
hand of the legislator having guided also that of the 
parricide and assassin ; on the throne dictating iron 



i68 MILDNESS OF PUNISHMENTS, 

laws for the villanous souls of slaves to obey, and 
in the obscurity of private life urging to the slaughter 
of tyrants, only to create fresh ones in their stead. 

Two other fatal consequences flow from the cruelty 
of punishments, and are contrary to their very pur- 
pose, the prevention of crimes. The first is, that it is 
not so easy to preserve the essential proportion be- 
tween crime and punishment, because, however much 
a studied cruelty may diversify its forms, none of them 
can go beyond the extreme limit of endurance which 
is a condition of the human organisation and sensibi- 
lity. When once this extreme limit is attained, it 
would be impossible to invent such a corresponding 
increase of punishment for still more injurious and 
atrocious crimes as would be necessary to prevent 
them. The other consequence is, that impunity itself 
arises from the severity of punishments. Men are 
restrained within limits both in good and evil ; and a 
sight too atrocious for humanity can only be a 
passing rage, not a constant system, such as the laws 
ought to be ; if the latter are really cruel, either 
they are changed, or themselves give rise to a fatal 
impunity. 

I conclude with this reflection, that the scale of 
punishments should be relative to the condition of a 
nation. On the hardened minds of a people scarcely 
emerged from the savage state the impressions made 
should be stronger and more sensible. One needs a 



n- 



MILDNESS OF FUNISHMRNTS, 169 

thunderbolt for the destruction of a fierce lion that 
faces round at the shot of a gun. But in proportion 
as men's minds become softened in the social state, 
their sensibility increases, and commensurate with that 
increase should be the diminution of the force of pun- 
ishment, if it be desired to maintain any proportion 
between the object and the sensation that attends it. 



CHAPTER XVI. 

CAPITAL PUNISHMENT. 

This useless prodigality of punishments, by which 
men have never been made any better, has driven me 
to examine whether the punishment of death be really 
useful and just in a well organised government. 
What kind of right can that be which men claim for 
the slaughter of their fellow-beings } Certainly not 
that right which is the source of sovereignty and of 
laws. For these are nothing but the sum-total of the 
smallest portions of individual liberty, and represent 
the general will, that is, the aggregate of individual 
wills. But who ever wished to leave to other men 
the option of killing him ? How in the least possible 
sacrifice of each man's liberty can there be a sacrifice 
of the greatest of all goods, namely, of life } And 
if there could be that sacrifice, how would such a 
principle accord with the other, that a man is not the 



I70 CAPITAL PUNISHMENT. 

master of his own life ? Yet he must have been so, 
could he have given to himself or to society as a body 
this right of killing him. 

The death penalty therefore is not a right ; I 
have proved that it cannot be so ; but it is a war of a 
nation against one of its members, because his anni- 
hilation is deemed necessary and expedient But if 
I can show that his death is neither necessary nor 
expedient, I shall have won the cause of humanity. 

The death of a citizen can only be deemed neces- 
sary for two reasons. The first is when, though de- 
prived of his personal freedom, he has still such con- 
nections and power as threaten the national security ; 
when his existence is capable of producing a dan- 
gerous revolution in the established form of govern- 
ment. The death of a citizen becomes then necessary 
when the nation is recovering or losing its liberty, or 
in a time of anarchy, when confusion takes the place 
of laws ; but in times when the laws hold undisturbed 
sway, when the form of government corresponds with 
the wishes of a united nation, and is defended inter- 
nally and externally by force, and by opinion which 
is perhaps even stronger than force, where the supreme 
power rests only with the real sovereign, and riches 
serve to purchase pleasures but not places, I see 
no necessity for destroying a citizen, except when his 
death might be the real and only restraint for 
diverting others from committing crimes ; this latter 



CAPITAL PUNISHMENT, 171 

case constituting the second reason for which one 
may believe capital punishment to be both just and 
necessary. 

Since mankind generally, suspicious always of 
the language of reason, but ready to bow to that of 
authority, remain unpersuaded by the experience of 
all ages, in which the supreme punishment has never 
diverted resolute men from committing offences 
against society ; since also they are equally unmoved 
by the example of the Romans and by twenty years 
of the reign of the Empress Elizabeth of Russia, 
during which she presented this illustrious example 
to the fathers of their people, an example which is 
at least equivalent to many conquests bought by the 
blood of her country's sons, it is sufficient merely to 
consult human nature itself, to perceive the truth of 
the assertion I have made. 

The greatest effect that any punishment has upon 
the human mind is not to be measured by its intensity 
but by its duration, for our sensibility is more easily 
and permanently affected by very slight but re- 
peated impressions than by a strong but brief shock. 
Habit holds universal sway over every sentient being, 
and as we speak and walk and satisfy our needs by 
its aid, so moral ideas only stamp themselves on our 
mind by long and repeated impressions. It is not 
the terrible yet brief sight of a criminal's death, but 
the long and painful example of a man deprived of 



172 CAPITAL PUNISHMENT, 

his liberty, who, having become as it were a beast of 
burthen, repays with his toil the society he has offended, 
which is the strongest restraint from crimes. Far 
more potent than the fear of death, which men ever 
have before their eyes in the remote distance, is the 
thought, so efficacious from its constant recurrence : 
* I myself shall be reduced to as long and miserable a 
condition if I commit similar misdeeds.* 

Capital punishment makes an impression in pros- 
pect which, with all its force, does not fully meet that 
ready spirit of forgetfulness, so natural to man even 
in his most important concerns, and so liable to be 
accelerated by his passions. As a general rule, men 
are startled by the sight of violent sufferings, but not 
for long, and therefore such impressions are wont so 
to transform them as to make of ordinary men either 
Persians or Spartans ; but in a free and settled go- 
vernment impressions should rather be frequent than 
strong. 

Capital punishment becomes a spectacle for the 
majority of mankind, and a subject for compassion and 
abhorrence for others ; the minds of the spectators 
are more filled with these feelings than with the 
wholesome terror the law pretends to inspire. But in 
moderate and continuing penalties the latter is the 
predominant feeling, because it is the only one. The 
limit, which the legislator should affix to the severity 
of penalties, appears to lie in the first signs of a feel- 

1 



CAPITAL PUNISHMENT, 173 

ingofcompassion becoming Uppermost in the minds of 
the spectators, when they look upon the punishment 
rather as their own than as that of the criminal. 

In order that a punishment may be just, it must 
contain only such degrees of intensity as suffice to 
deter men from crimes. But as there is no one who 
on reflection would choose the total and perpetual 
loss of his liberty, however great the advantages 
offered him by a crime, the intensity of the punish- 
ment of servitude for life, substituted for capital pun- 
ishment, has that in it which is sufficient to daunt the 
most determined courage. I will add that it is even 
more deterrent than death. Very many men face 
death calmly and firmly, some from fanaticism, some 
from vanity, which almost always attends a man to 
the tomb ; others from a last desperate attempt either 
no longer to live or to escape from their miseiy ; but 
neither fanaticism nor vanity have any place among 
fetters and chains, under the stick, under the yoke, in 
a cage of iron ; the wretch thus punished is so far 
from terminating his miseries that with his punish- 
ment he only begins them. 

The mind of man offers more resistance to violence 
and to extreme but brief pains than it does to time 
and to incessant weariness ; for whilst it can, so to 
speak, gather itself together for a moment to repel the 
former, its vigorous elasticity is insufficient to resist 
the long and repeated action of the latter. In the 



174 CAPITAL PUNISHMENT. 

case of capital punishment, each example presented 
of it is all that a single crime affords ; in penal servi- 
tude for life, a single crime serves to present numerous 
and lasting warnings. And if it be important that the 
power of the laws should often be witnessed, there 
ought to be no long intervals between the examples 
of the. death penalty ; but this would presuppose the 
frequency of crimes, so that, to render the punishment 
effective, it must not make on men all the impression 
that it ought to make, in other words, it must be useful 
and iiot useful at the same time. And should it be 
objected that perpetual servitude is as painful as 
death, and therefore equally cruel, I will reply, that, 
taking into consideration all the unhappy moments of 
servitude, it will perhaps be even more painful than 
death ; but whilst these moments are spread over the 
whole of a lifetime, death exercises all its force in a 
single moment. There is also this advantage in penal 
servitude, that it has more terrors for him who sees it 
than for him who suffers it, for the former thinks of 
the whole sum-total of unhappy moments, whilst the 
latter, by the unhappiness of the present moment, 
has his thoughts diverted from that which is to come. 
All evils are magnified in imagination, and every suf- 
ferer finds resources and consolations unknown to 
and unbelieved in by spectators, who substitute their 
own sensibility for the hardened soul of a criminal. 
The following is the kind of reasoning adopted 



CAPITAL PUNISHMENT. 175 

by the thief or the assassin, whose only motives for 
not breaking the laws are the gallows or the wheel. 
(I know that the analysis of one's own thoughts is an 
art only learnt by education, but a thief does not the 
less act according to certain principles because he 
is unable to express them). * Of what sort,* he 
argues, *are these laws that I am bound to observe, 
that leave so great an interval between myself and 
the rich man } He denies me the penny I ask of him, 
and excuses himself by ordering from me a work of 
which he himself knows nothing. Who has made 
these laws.? Were they not made by rich and 
powerful men, who have never deigned to visit the 
wretched hovels of the poor, who have never divided 
a musty loaf of bread amid the innocent cries of 
famished children and the tears of a wife } Let us 
break these bonds, which are fatal to the greater 
number, and only useful to a few indolent tyrants ; 
let us attack injustice in its source. I will return to 
my state of natural independence ; I will live for 
some time happy and free on the fruits of my courage 
and address ; and if the day should ever come when I 
have to suffer and repent for it, the time of suffering 
will be short, and I shall have one day of misery for 
many years of liberty and pleasure. As the king of 
a small band, I will correct the errors of fortune, and 
see these tyrants pale and tremble before one, whom 
in their insolent arrogance they rated lower than their 



176 CAPITAL PUNISHMENT, 

horses or their dogs.' Then religion hovers before the 
mind of the criminal, who turns everything to a bad 
use, and offering him a facile repentance and an 
almost certain eternity of bliss does much to diminish 
in his eyes the horror of that last tragedy of all. 

But the man who sees in prospect a great number 
of years, or perhaps the whole of his life, to be passed 
in servitude and suffering before the eyes of fellow- 
citizens with whom he is living in freedom and friend- 
ship, the slave of those laws which had once protected 
him, makes a useful comparison of all these circum- 
stances with the uncertain result of his crimes and 
with the shortness of the time for which he would 
enjoy their fruits. The ever present example of those 
whom he actually sees the victims of their own im- 
prudence, impresses him much more strongly tJian 
the sight of a punishment which hardens rather than 
corrects him. 

Capital punishment is injurious by the example 
of barbarity it presents. If human passions, or the 
necessities of war, have taught men fo shed one ano- 
ther's blood, the laws, which are intended to mode- 
rate human conduct, ought not to extend the savage 
example, which in the case of a legal execution is all 
the more baneful in that it is carried out with studied 
formalities. To me it seems an absurdity, that the 
laws, which are the expression of the public will, 
which abhor and which punish* murder, should them- 



CAPITAL PUNISHMENT, 177 

selves commit one ; and that, to deter citizens from 
private assassination, they should themselves order a 
public murder. What are the true and the most use- 
ful laws ? Are they not those covenants and con- 
ditions which all would wish observed and proposed, 
when the incessant voice of private interest is hushed 
or is united with the interest of the public ? What 
are every man's feelings about capital punishment ? 
Let us read them in the gestures of indignation and 
scorn with which everyone looks upon the execu- 
tioner, who is, after all, an innocent administrator of 
the public will, a good citizen contributory to the 
public welfare, an instrument as necessary for the 
internal security of a State as brave soldiers are for 
its external. What, then, is the source of this con- 
tradiction ; and why is this feeling, in spite of reason, 
ineradicable in mankind ? Because men in their 
most secret hearts, that part of them which more 
than any other "fetill preserves the original form of 
their first nature, have ever believed that their lives 
lie at no one's disposal, save in that of necessity 
alone, which, with its iron sceptre, rules the universe. 
What should men think when they see wise 
magistrates and grave priests of justice with calm 
indifference causing a criminal to be dragged by their 
slow procedure to death ; or when they see a judge, 
whilst a miserable wretch in the convulsions of his 
last agonies is awaiting the fatal blow, pass away 

N 



178 CAPITAL PUNISHMENT. 

coldly and unfeelingly, perhaps even with a secret 
satisfaction in his authority, to enjoy the comforts and 
pleasures of life ? ' Ah,* they will say, * these laws 
are but the pretexts of force, and the studied cruel 
formalities of justice are but a conventional language, 
used for the purpose of immolating us with greater 
safety, like victims destined in sacrifice to the in- 
satiable idol of tyranny. That assassination which 
they preach to us as so terrible a misdeed we see 
nevertheless employed by them without either scruple 
or passion. Let us profit by the example. A violent 
death seemed to us a terrible thing in the descriptions 
of it that were made to us, but we see it is a matter 
of a moment. How much less terrible will it be for a 
man who, not expecting it, is spared all that there is 
of painful in it* 

Such are the fatal arguments employed, if not 
clearly, at least vaguely, by men disposed to crimes, 
among whom, as we have seen, the abuse of religion 
is more potent than religion itself. 

If I am confronted with the example of almost all 
ages and almost all nations who have inflicted the 
punishment of death upon some crimes, I will reply, 
that the example avails nothing before truth, against 
which there is no prescription of time ; and that the 
history of mankind conveys to us the idea of an 
immense sea of errors, among which a few truths, 
confusedly and at long intervals, float on the surface. 



CAPITAL PUNISHMENT, 179 

Human sacrifices were once common to almost all 
nations, yet who for that reason will dare defend 
them ? That some few states, and for a short time 
only, should have abstained from inflicting death, 
rather favours my argument than otherwise, because 
such a fact is in keeping with the lot of, all great 
truths, whose duration is but as of a lightning flash 
in comparison with the long and darksome night 
that envelops mankind. That happy time has not 
yet arrived when truth, as error has hitherto done, 
shall belong to the majority of men ; and from this 
universal law of the reign of error those truths alone 
have hitherto been exempt, which supreme wisdom 
has seen fit to distinguish from others, by making 
them the subject of a special revelation. 

The voice of a philosopher is too feeble against 
the noise and cries of so many followers of blind 
custom, but the few wise men scattered over the 
face of the earth will respond to me from their inmost 
hearts ; and, amid the many obstacles that keep it 
from a monarch, should truth perchance arrive in 
spite of him at his throne, let him know that it 
comes there attended by the secret wishes of all 
men ; let him know that before his praises the bloody 
fame of conquerors will be silenced, and that posterity, 
which is just, will assign him the foremost place 
among the pacific triumphs of a Titus, an Antonine, 
or a Trajan. 

N 2 



l8o CAPITAL PUNISHMENT. 

Happy were humanity, if laws were now dictated 
to it for the first time, when we see on the thrones of 
Europe beneficent monarchs, men who encourage the 
virtues of peace, the sciences and the arts, who are 
fathers to their people, who are crowned citizens, and 
the increase of whose authority forms the happiness of 
their subjects, because it removes that intermediate 
despotism, more cruel because less secure, by which 
the people's wishes, always sincere, and always 
attended to when they can reach the throne, have 
been usually intercepted and suppressed. If they, I 
say, suffer the ancient laws to exist, it is owing to 
the infinite difficulties of removing from errors the 
revered rust of many ages; which is a reason for 
enlightened citizens to desire with all the greater 
ardour the continual increase of their authority. 



CHAPTER XVII. 

BANISHMENT AND CONFISCATIONS. 

Whosoever disturbs the public peace, or obeys 
not the laws, that is, the conditions under which 
men bear with and defend one another, ought to 
be excluded from society, that is, to be banished 
from it. 

Banishment, it would seem, should be employed 



BANISHMENT AND CONFISCATIONS, i8i 

in the case of those against whom, when accused of 
an atrocious crime, there is a great probability but 
not a certainty of guilt ; but for this purpose a 
statute is required, as little arbitrary and as precise 
as possible, condemning to banishment any man who 
shall have placed his country in the fatal dilemma of 
either fearing him or of injuring him, leaving him, 
however, the sacred right of proving his innocence. 
Stronger reasons then should exist to justify the 
banishment of a native than of a foreigner, of a man 
criminated for the first time than of one who has been 
often so situated. 

But should a man who is banished and excluded 
for ever from the society of which he was a member 
be also deprived of his property 1 Such a question 
may be regarded from different points of view. The 
loss of property is a greater punishment than banish- 
ment ; there ought, therefore, to be some cases in 
which, according to his crime, a man should lose the 
whole, or part, or none of his property. The con- 
fiscation of the whole will occur, when the legal sen- 
tence of banishment is of a kind to annihilate all the 
ties that exist between society and its offending mem- 
ber; for in such a case the citizen dies, and only the 
man remains ; and with regard to the political body 
civil death should produce the same effect as natural 
death. It wkuld seem then that the confiscated pro- 
perty should i^lass to a man's lawful heirs rather than 



i82 BANISHMENT AND CONFISCATIONS. 

to the head of the State, since death and banishment 
in its extreme form are the same with regard to the 
body politic. But it is not by this subtlety that I dare 
to disapprove of confiscations of property. If some 
have maintained that confiscations have acted as 
checks on acts of revenge and on the great power 
of individuals, it is from neglecting t;o consider that, 
however much good punishments may effect, they 
are not for that reason always just, because to be 
just they must be necessary ; and an expedient in- 
justice can be tolerated by no legislator, who wishes to 
close all doors s^ainst watchful tyranny, ever ready 
to hold out flattering hopes, by temporary advan- 
tages and by the prosperity of a few persons of cele- 
brity, in disregard of future ruin and of the tears of 
numberless persons of obscurity. Confiscations place 
a price on the heads of the feeble, cause the innocent 
to suffer the punishment of the guilty, and make the 
commission of crimes a desperate necessity even for 
the innocent. What sadder sight can there be than 
that of a family dragged down to infamy and misery 
by the crimes of its head, unable to prevent them 
by the submission imposed on it by the laws, even 
supposing such prevention to have been within its 
power ! 



i83 



CHAPTER XVIII. 

INFAMY. 

Infamy is a sign of public disapprobation, depriving 
a criminal of the good-will of his countrymen, of their 
confidence, and of that feeling almost of fraternity that 
a common life inspires. It does not depend upon the 
laws. Hence the infamy which the laws inflict should 
be the same as that which arises from the natural 
relations of things, the same as that taught by uni- 
versal morality, or by that particular morality, which 
depends on particular systems, and sets the law for 
ordinary opinions or for this and that nation. If the 
one kind of infamy is different from the other, either 
the law loses in public esteem, or the ideas of 
morality and honesty disappear, in spite of decla- 
mations, which are never efficacious against facts. 
Whoever declares actions to be infamous which are 
in themselves indifferent, detracts from the infamy of 
actions that are really in themselves infamous. 

Corporal and painful punishments should not be 
inflicted for those crimes which have their foundation 
in pride, and draw from pain itself their glory and 
nutriment. For such crimes ridicule and infamy are 
more fitted, these being penalties which curb the 



t ■ • 



i84 INFAMY, 

pride of fanatics by the pride of the beholders, and 
only let truth itself escape their tenacity by slow and 
obstinate efforts. By such an opposition of forces 
against forces, and of opinions against opinions, the 
wise legislator destroys that admiration and astonish- 
ment among a people, which a false principle causes, 
whose original absurdity is usually hidden from view 
by the plausible conclusions deduced from it. 

Penalties of infamy ought neither to be too 
common, nor to fall upon too many persons at a 
time; not too common, because the real and too 
frequent effects of matters of opinion weaken the 
force of opinion itself : not too general, because the 
disgrace of many persons resolves itself into the 
disgrace of none of them. 

This, then, is the way to avoid confounding the 
relations and invariable nature of things, which, being 
unlimited by time and in ceaseless operation, con- 
founds and overturns all narrow regulations that 
depart from it. It is not only the arts of taste and 
pleasure which have for their universal principle 
the faithful imitation of nature ; but the art of politics 
itself, at least that which is true and permanent, is 
subject to this general maxim, since it consists in 
nothing else than the art of directing in the best way 
and to the same purposes the immutable sentiments 
of mankind. 



i85 



CHAPTER XIX. 

THE PROMPTNESS OF PUNISHMENTS. 

The more speedily and the more nearly in connec- 
tion with the crime committed punishment shall 
follow, the more just and useful it will be. I say 
more just, because a criminal is thereby spared 
those useless and fierce torments of suspense which 
are all the greater in a person of vigorous imagination 
and fully conscious of his own weakness ; more just 
also, because the privation of libert}^ in itself a 
punishment, can only precede the sentence by the 
shortest possible interval compatible with the require- 
ments of necessity. Imprisonment, therefore, is 
simply the safe custody of a citizen pending the 
verdict of his guilt ; and this custody, being essen- 
tially disagreeable, ought to be as brief and easy 
as possible. The shortness of the time should be 
measured both by the necessary length of the pre- 
parations for the trial and by the seniority of claim to 
a judgment. The strictness of confinement should 
be no more than is necessary either for the prevention 
of escape or for guarding against the concealment 
of the proof of crimes. The trial itself should be 
finished in the shortest time possible. What contrast 



1 86 PROMPTNESS OF PUNISHMENTS. 

more cruel than that between a judge's ease and 
a defendant's anguish ? between the comforts and 
pleasures of an unfeeling magistrate on the one 
hand, and the tears and wretchedness of a prisoner 
on the other ? In general, the weight of a punishment 
and the consequence of a crime should be as effica- 
cious as possible for the restraint of other men and 
as little hard as possible foi* the individual who is 
punished ; for one cannot call that a proper form of 
society, where it is not an infallible principle, that its 
members intended, in constituting it, to subject them- 
selves to as few evils as possible. 

I said that the promptness of punishment is more 
useful, because the shorter the interval of time be- 
tween the punishment and the misdeed, the stronger 
and the more lasting in the human mind is the associa- 
tion of these ideas, crime and punishment, so that in- 
sensibly they come to be considered, the one as the 
cause and the other as its necessary and inevitable 
consequence. It is a proved fact that the association 
of ideas is the cement of the whole fabric of the 
human intellect, and that without it pleasure and 
pain would be isolated and ineffective feelings. The 
further removed men are from general ideas and 
universal principles, that is, the more commonplace 
they are, the more they act by their immediate and 
nearest associations, to the neglect of remoter and 
more complex ones, the latter being of service only 



PROMPTNESS OF PUNISHMENTS, 187 

to men strongly impassioned for a given object of 
pursuit, inasmuch as the light of attention illuminates 
a single object, whilst it leaves the others obscure. 
They are also of service to minds of a higher quality, 
because, having acquired the habit of running rapidly 
over many subjects at a time, they possess facility in 
placing in contrast with one another many partial 
feelings, so that the result of their thoughts, in other 
words, their action, is less perilous and uncertain. 

The close connection, therefore, of crime and 
punishment is of the utmost importance, if it be 
desirable that in rough and common minds there 
should, together with the seductive idea of an advan- 
tageous crime, immediately start up the associated 
idea of its punishment. Long delay has no other 
effect than the perpetual separation of these two 
ideas ; and whatever the impression produced by the 
punishment of a crime, it produces it less as a punish- 
ment than as a sight, and only produces it when the 
horror of the particular crime, which would serve to 
strengthen the feeling of the punishment, has been 
weakened in the minds of the spectators. 

Another principle would serve admirably to draw 
still closer the important connection between a mis- 
deed and its punishment, and that is, that the latter 
should as far as possible conform to the nature of the 
crime. This analogy facilitates marvellously the 
contrast that ought to exist between the impulse to 



i88 PROMPTNESS OF PUNISHMENTS. 

the crime and the counter-influence of the punishment, 
the one, that is, diverting the mind and guiding it 
to an end quite different from that to which the 
seductive idea of transgressing the law endeavours 
to lead it. 

Persons guilty of lesser crimes are usually either 
punished in the obscurity of a prison, or transported, 
as an example to nations who have given no offence, 
to a distant and therefore almost useless servitude. 
Since the gravest crimes are not those which men are 
tempted to commit on the spur of the moment, the 
public punishment of a great misdeed will be regarded 
by most men as strange and of impossible occur- 
rence ; but the public punishment of lighter crimes, 
to which men's thoughts more readily incline, will 
make an impression, which, at the same time that it 
diverts the mind from them, will restrain it still more 
from crimes of greater gravity. Punishments should 
not only be proportioned to one another and to 
crimes in point of force, but also in the mode of 
their infliction. 



i89 



CHAPTER XX. 

CERTAINTY OF PUNISHMENTS — PARDONS. 

One of the greatest preventives of crimes is, not the 
cruelty of the punishments attached to them, but their 
infallibility, and consequently that watchfulness on the 
part of the magistrates and that inexorable severity 
on the part of the judge which, to be a useful virtue, 
must coincide with a mild system of laws. The cer- 
tainty of a punishment, moderate though it be, will 
ever make a stronger impression than the fear of 
another, more terrible, perhaps, but associated with the 
hope of impunity ; for even the least evils when cer- 
tain always terrify men's minds, and hope, that gift 
of heaven, which often makes up to us for everything, 
always throws into the distance the idea of greater 
evils, especially when its force is increased by impu- 
nity, which avarice and weakness so often grant. 

It is sometimes the custom to release a man from 
the punishment of a slight crime when the injured 
person pardons him : an act, indeed, which is in ac- 
cordance with mercy and humanity but contrary to 
public policy ; as if a private citizen could by his 
remission do away with the necessity of the example 
in the same way that he can excuse the reparation 
due for the offence. The right of punishing does not 



190 CERTAINTY OF PUNISHMENTS^PARDONS. 

rest with an individual, but with the community as a 
whole, or the sovereign. An individual can only re- 
nounce his particular portion of that right, not annul 
that of all the rest 

In proportion as punishments become milder, 
clemency and pardon become less necessary. Happy 
the nation in which their exercise should be baneful ! 
Clemency, therefore, that virtue, which has sometimes 
made up in a sovereign for failings in all the other 
duties of the throne, ought to be excluded in a 
perfect system of legislation, where punishments are 
mild and the method of trial regular and expeditious. 
This truth will appear a hard one to anybody living 
in the present chaotic state of the criminal law, where 
the necessity of pardon and favours accords with the 
absurdity of the laws and with the severity of sen- 
tences of punishment. This right of pardon is indeed 
the fairest prerogative of the throne, the most desir- 
able attribute of sovereignty ; it is, however, the tacit 
mark of disapproval that the beneficent dispensers of 
the public happiness exhibit towards a code, which 
with all its imperfections claims in its favour the pre- 
judice of ages, the voluminous and imposing array of 
innumerable commentators, the weighty apparatus of 
unending formalities, and the adhesion of those per- 
sons of half-learning who, though less feared than 
real philosophers, are really more dangerous. But 
let it be remembered that clemency is the virtue of 



CERTAINTY OF PUNISHMENTS— PARDONS. 191 

the maker, not of the executor, of the laws ; that it 
should be conspicuous in the code of laws rather than 
in particular judgments ; that the showing to men, 
that crimes may be pardoned and that punishment 
is not their necessary consequence, encourages the 
hope of impunity, and creates the belief that sen- 
tences of condemnation, which might be remitted and 
are not, are rather violent exhibitions of force than 
emanations of justice. What shall be said then when 
the sovereign grants a pardon, that is, public immu- 
nity to an individual, and when a private 'act of un- 
enlightened kindness constitutes a public decree of 
impunity? Let the laws therefore be inexorable and 
their administrators in particular cases inexorable, but 
let the law-maker be mild, merciful, and humane. 
Let him found his edifice, as a wise architect, on the 
basis of self-love ; let the general interest be the sum 
of the interests of each, and he will no longer be 
constrained, by partial laws and violent remedies to 
separate at every moment the public welfare from 
that of individuals, and to raise the appearance of 
public security on fear and mistrust. As a profound 
and feeling philosopher let him allow men, that is, 
his brethren, to enjoy in peace that small share 
of happiness which is given them to enjoy in this 
corner of the universe, in that immense system 
established by the First Cause, by Him Who Is. 



192 



CHAPTER XXI. 

ASYLUMS OF REFUGE. 

There remain two questions for me to examine : the 
first, whether asylums of refuge are just, and whether 
international agreements of extradition are expedient 
or not. There should be no spot within the boun- 
daries of any country independent of the laws. Every 
citizen should be followed by their power, as every 
substance is followed by its shadow. There is only a 
difference of degree between impunity and the right 
of asylum ; and as the effective influence of punish- 
ment consists more in its inevitability than in its 
violence, asylums do more to invite to crimes than 
punishments do to deter from them. The multipli- 
cation of asylums is the formation of so many petty 
sovereignties ; for where there are no laws to command, 
there it is easy for new laws, opposed to the general 
laws of a country, to be formed, and consequently for 
a spirit opposed to that of the whole collective social 
body to arise. All history shows that from asylums 
have issued great revolutions in States and in the 
opinions of mankind. 

Some persons have maintained that a crime, that 
is, an action contrary to the laws, is punishable 
wherever committed, as if the character of subject 



ASYLUMS OF REFUGE. 193 

were indelible, or, in other words, synonymous with, 
nay, worse than, the character of slave ; as if a man 
could be the subject of one kingdom and the resident 
of another, or as if his actions could without contra- 
diction be subordinate to two sovereign powers and 
to two legal systems often contradictory. So some 
think that a cruel action done, say, at Constantinople 
is punishable at Paris, for the abstract reason that he 
who offends humanity deserves to have collective 
humanity for his enemy, and merits universal execra- 
tion ; as if judges were the avengers of human sensi- 
bility in general, and not rather of the covenants that 
bind men together. The place of punishment is the 
place of the crime, because there, and there only, is it 
a compulsory duty to injure an individual, to prevent 
an injury to the public. A villain, but one who has not 
broken the covenants of the society of which he was 
not a member, may be an object of fear, and for that 
reason be expelled and exiled by the superior power 
of that society ; but he cannot be legally and formally 
punished, since it is for the laws to avenge, not the 
intrinsic malice of particular actions, but the violation 
of compacts. 

But whether the international extradition of cri- 
minals be useful I would not venture to decide, until 
laws more in conformity with the needs of humanity, 
until milder penalties, and until the emancipation of 
law from the caprice of mere opinion, shall have given 

O 



194 ASYLUMS OF REFUGE, 

security to oppressed innocence and hated virtue ; 
until tyranny shall have been confined, by the force 
of universal reason which ever more and more unites 
the interests of kings and subjects, to the vast plains 
of Asia ; however much the conviction of finding 
nowhere a span of earth where real crimes were par- 
doned might be the most efficacious way of preventing 
their occurrence. 



CHAPTER XXII. 



OF PROSCRIPl'ION. 



The second question is, whether it is expedient to 
place a reward on the head of a known criminal, and 
to make of every citizen an executioner by arming 
him against the offender. Either the criminal has 
fled from his country or he is still within it. In the 
first case the sovereign encourages the commission of 
a crime and exposes its author to a punishment, 
being thereby guilty of an injury and of an usurpa- 
tion of authority in the dominions of another, and 
authorising other nations to do the same by himself. 
In the second case the sovereign displays his own 
weakness, for he who has the power wherewith to 
defend himself seeks not to purchase it. Moreover, 
such an edict upsets all ideas of morality and virtue. 



OF PROSCRIPTION. 195 

which are ever ready to vanish from the human mind 

at the very slightest breath. Now the laws invite to 

treachery, and anon they punish it ; with one hand 

the legislator tightens the bonds of the family, of 

kindred, and of friendship, whilst with the other he 

rewards whosoever violates and despises them ; 

always in self-contradiction, he at one moment 

invites to confidence the suspicious natures of men, 

and at another scatters mistrust broadcast among 

them. Instead of preventing one crime, he causes a 

hundred. These are the resources of weak nations, 

whose laws are but the temporary repairs of a ruined 

building tJiat totters throughout. In proportion as a 

nation becomes enlightened, good faith and mutual 

confidence become necessary, and tend ever more to 

identify themselves with true policy. Tricks, intrigues, 

dark and indirect^paths, are for the most part foreseen, 

and the general quickness of all men collectively 

over-reaches and blunts that of single individuals. 

The very ages of ignorance, in which public morality 

inclines men to obey the dictates of private morality, 

serve as instruction and experience for the ages of 

enlightenment. But laws which reward treachery 

and stir up clandestine hostility by spreading mutual 

suspicion among citizens, are opposed to this union 

of private and public morality, a union which is so 

necessary, and to the observance of which individuals 

might owe their happiness, nations their peace, and 

o 2 




196 OF PROSCRIPTION, 

the universe a somewhat longer period of quiet and 
repose from the evils which at present pervade it. 



CHAPTER XXIII. 

PROPORTION BETWEEN CRIMES AND PUNISHMENTS'. 

Not only is it the general interest that crimes should 
not be committed, but that they should be rare in 
proportion to the evils they cause to society. The 
more opposed therefore that crimes are to the public 
welfare, and the more numerous the incentives to 
them, the stronger should be the repellent obstacles. 
This principle accordingly establishes the necessity 
of a certain proportion between crimes and punish- 
ments. 

If pleasure and pain are the motors of sensitive 
beings, if the invisible lawgiver of humanity has 
decreed rewards and punishments as one of the 
motives to impel men to even their noblest endea- 
vours, the inexact distribution of these motives will 
give rise to that contradiction, as little noticed as it is 
of common occurrence, namely, that the laws punish 
crimes which are entirely of their own creation. If 
an equal penalty is attached to two crimes of unequal 
injury to society, the greater crime of the two, if it 
promise a greater advantage than the other, will have 
no stronger motive in restraint of its perpetration. 



PROPORTION IN PUNISHMENT. 197 

Whoever, for example, sees the same punishment of 
death decreed for the man who kills a pheasant and 
the man who slays his fellow or falsifies an important 
document, will draw no distinction between such 
crimes ; and thus moral sentiments, the product only 
of many ages and of much bloodshed, the slowest 
and most difficult attainment of the human mind, 
dependent, it has been thought, on the aid of the 
most sublime motives and on a parade of the gravest 
formalities, will be destroyed and lost 

It is impossible to prevent all the disorders that 
may arise in the universal conflict of human passions. 
Their increase depends on that of population and on 
the crossings of private interests, which cannot be 
directed with geometrical exactness to the public 
welfare. In political arithmetic the calculation of 
probabilities must be substituted for mathematical 
exactness. Glance at the history of the world, and 
you will see disorders increase with the increase of 
the bounds of empire ; thus national feeling being to 
the same extent diminished, the general inducement 
to crime increases with the greater interest of each 
individual in such disorders, and on this account the 
necessity for aggravating penalties ever continues to 
increase. 

That force, similar to the force of gravitation, 
which constrains us to seek our own well-being, only 
admits of counteraction in proportion to the obstacles 



1^8 PROPORTION IN PUNISHMENT. 

opposed to it. The effects of this force make up the 
confused series of human actions ; if these clash to- 
gether and impede one another, punishments, which I 
would call political obstacles^ prevent bad effects from 
resulting, without destroying the impelling cause, 
which lies in the sensibility inseparable from humanity ; 
and the legislator, in enacting them, acts the part of 
a clever architect, whose function it is to counteract 
the tendency of gravitation to cause a building to 
fall, and to bring to bear all the lines which contri- 
bute to its strength. 

Given the necessity of the aggregation of man- 
kind, and given the covenants which necessarily 
result from the very opposition of private interests, a 
scale of offences may be traced, beginning with those 
which tend directly to the destruction of society, and 
ending with acts of the smallest possible injustice 
committed against individual members of it. Between 
these extremes are comprised all the actions opposed 
to the public welfare which are called crimes, and 
which by imperceptible degrees decrease in enormity 
from the highest to the lowest. If the infinite and 
obscure combinations of human actions admitted of 
mathematical treatment, there ought to be a corre- 
sponding scale of punishments, varying from the 
severest to the slightest penalty. If there were an 
exact and universal scale of crimes and punishments, 
we should have an approximate and general test by 



PROPORTION IN PUNISHMENT, 199 

which to gauge the degrees of tyranny and liberty 
in different governments, the relative state of the 
humanity or wickedness of different nations. But the 
wise legislator will rest satisfied with marking out 
the principal divisions in such a scale, so as not to 
invert their order, nor to affix to crimes of the first 
degree punishments due to those of the last 



CHAPTER XXIV. 

THE MEASURE OF PUNISHMENTS. 

We have seen that the true measure of crimes is the 
injury done to society. This is one of those palpable 
truths which, however little dependent on quadrants 
or telescopes for their discovery, and fully within the 
reach of any ordinary intelligence, are yet, by a mar- 
vellous combination of circumstances, only recognised 
clearly and firmly by some few thinkers, belonging 
to every nationality and to every age. But Asiatic 
ideas, and passions clothed with authority and power, 
have, generally by imperceptible movements, some- 
times by violent assaults on the timid credulity of 
mankind, dissipated those simple notions, which per- 
haps formed the first philosophy of primitive commu- 
nities, and to which the enlightenment of this age 
seems likely to reconduct us, but to do so with that 
greater sureness, which can be gained from an exact 



itoo MEASUkE OF PUNISHMENTS. 

investigation into things, from a thousand unhappy 
experiences, and from the very obstacles that militate 
against it. 

They who have thought that the criminal's in- 
tention was the true measure of crimes were in the 
wrong. For the intention depends on the actual 
impression of things upon a man, and on his pre- 
cedent mental disposition, things which vary in all 
men and in each man, according to the very rapid 
succession of his ideas, his passions, and his circum- 
stances. It would, therefore, be necessary to form 
not only a particular code for each citizen, but a 
fresh law for every crime. Sometimes with the best 
intentions men do the greatest evil to society ; and 
sometimes with the very worst they do it the greatest 
good. 

Others again measure crimes rather by the rank 
of the person injured than by their importance in 
regard to the public weal. Were this the true mea- 
sure of crimes, any act of irreverence towards the 
Supreme Being should be punished more severely 
than the assassination of a monarch, whereas the 
superiority of His nature affords an infinite compen- 
sation for the difference of the offence. 

Lastly, some have thought that the gravity of an 
act's sinfulness should be an element in the measure 
of crimes. But an impartial observer of the true 
relations between man and man, and between man 



MEASURE OF PUNISHMENTS, 201 

and God, will easily perceive the fallacy of this 
opinion. For the former relationship is one of equality ; 
necessity alone, from the clash of passions and oppos- 
ing interests, having given rise to the idea of the /7/^- 
lic utility^ the basis of human justice. But the other 
relationship is one of dependence on a perfect Being 
and Creator, who has reserved to Himself alone the 
right of being at the same time legislator and judge, 
and can alone unite the two functions without bad 
effects. If He has decreed eternal punishments to 
those who disobey His omnipotence, what insect shall 
dare to take the place of Divine justice, or shall wish 
to avenge that Being, who is all-sufficient to Himself, 
who can receive from things no impression of plea- 
sure nor of pain, and who alone of all beings acts 
without reaction } The degree of sinfulness in an 
action depends on the unsearchable wickedness of 
the heart, which cannot be known by finite beings 
without a revelation. How, then, found thereon a 
standard for the punishment of crimes } In such a 
case men might punish when God pardons, and 
pardon when God punishes. If men can act contrary 
to the Almighty by offending Him, they may also do 
so in the punishments they inflict. 



202 



CHAPTER XXV. 

THE DIVISION OF PUNISHMENTS. 

Some crimes tend directly to the destruction of so- 
ciety or to the sovereign who represents it ; others 
affect individual citizens, by imperilling their life, their 
property, or their honour ; whilst others, again, are 
actions contrary to the positive or negative obligations 
which bind every individual to the public weal. 

Any action that is not included between the two 
above-indicated extremes can only be called a crime 
or punished as such by those who find their interest 
in so calling it. The uncertainty of these limits has 
produced in different nations a system of ethics con- 
trary to the system of laws, has produced many 
actual systems of laws at total variance with one 
another, and a quantity of laws which expose even 
the wisest man to the severest penalties. Conse- 
quently the words virtue and vice have become of 
vague and variable meaning, and from the uncer- 
tainty thus surrounding individual existence, list- 
lessness and a fatal apathy have spread over poli- 
tical communities. 

The opinion that each citizen should have liberty 
to do whatsoever is not contrary to the laws, without 
fear of any other inconvenience than such as may 
arise from the action itself — this is the political dogma 



DIVISION OF PUNISHMENTS, 203 

that should be believed by the people and promul- 
gated by the chief magistrates, a dogma as sacred as 
that of the incorrupt guardianship of the laws, with- 
out which there can be no legitimate society ; a just 
compensation to mankind for their sacrifice of that 
entire liberty of action which belongs to every sensi- 
tive being, and is only limited by the extent of its 
force. This it is that forms liberal and vigorous 
souls, and enlightened minds ; that makes men virtu- 
ous with that virtue which can resist fear, and not 
with that flexible kind of prudence which is only 
worthy of a man who can put up with a precarious 
and uncertain existence. 

Whosoever will read with a philosophical eye the 
codes and annals of different nations will find almost 
always that the names of virtue and vice^ of good 
citizeft and criminal ^ are changed in the course of 
ages, not in accordance with the changes that occur 
in the circumstances of a country, and consequently 
in conformity with the general interest, but in accord- 
ance with the passions and errors that have swayed 
different leg^islators in succession. He will observe 
full often, that the passions of one age form the basis 
of the morality of later ones ; that strong passions, 
the offspring of fanaticism and enthusiasm, weakened 
and, so to speak, gnawed away by time (which reduces 
to a level all physical and moral phenomena) become 
little by little the prudence of the age, and a useful 



204 DIVISION OF PUNISHMENTS. 

instrument in the hand of the strong man and the 
clever. In this way the vaguest notions of honour 
and virtue have been produced ; for they change with 
the changes of time, which causes names to survive 
things ; as also with the changes of rivers and moun- 
tains, which form frequently the boundaries of moral 
no less than of physical geography. 



CHAPTER XXVL 

CRIMES OF HIGH TREASON. 

The first class of crimes — that is, the worst, because 
they are the most injurious to society — are those 
known as crimes of high treason. Only tyranny and 
ignorance,, which confound words and ideas of the 
clearest meaning, can apply this name, and conse- 
quently the heaviest punishment, to different kinds 
of crimes, thus rendering men, as in a thousand other 
cases, the victims of a word. Every crime, be it ever 
so private, injures society ; but every crime does not 
aim at its immediate destruction. Moral, like physi-* 
cal actions, have their limited sphere of activity, and 
are differently circumscribed, like all the movements 
of nature, by time and space ; and therefore only a 
sophistical interpretation, which is generally the philo- 
sophy of slavery, can confound what eternal truth has 
distinguished by immutable differences. 



205 



CHAPTER XXVII. 

CRIMES AGAINST PERSONAL SECURITY — ACTS OF 
VIOLENCE — PUNISHMENTS OF NOBLES. 

After crimes of high treason come crimes opposed 
to the personal security of individuals. This security 
being the primary end of every properly constituted 
society, it is impossible not to affix to the violation 
of any citizen's right of personal security one of the 
severest punishments that the laws allow. 

Some crimes are injuries to a man's person, 
others to his property, and the former should cer- 
tainly be punished by corporal punishments. 

Offences, therefore, against personal security and 
liberty are among the greatest of crimes. Under 
this head fall not only the assassinations and thefts 
of the common people, but those also committed by 
the nobles and magistrates, whose influence, acting 
with greater force and to a greater distance, destroys 
in those subject to them all ideas of justice and duty, 
and gives strength to those ideas of the right of the 
strongest, which are equally perilous ultimately to 
him who exercises no less than to him who endures it. 

Neither the noble nor the rich man ought to be 
able to pay a price for injuries committed against 
the feeble and the poor ; else riches, which, under the 



2o6 CRIMES AGAINST PERSONAL SECURITY, 

protection of the laws, are the prize of industry, 
become the nourishment of tyranny. Whenever the 
laws suffer a man in certain cases to cease to be a 
person and to become a thingy there is no liberty ; for 
then you will see the man of power devoting all his 
industry to gather from the numberless combinations 
of civil life those which the law grants in his favour. 
This discovery is the magic secret that changes 
citizens into beasts of burden, and in the hand of the 
strong man forms the chain wherewith to fetter the 
actions of the imprudent and the weak. This is the 
reason why in some governments, that have all the 
semblance of liberty, tyranny lies hidden or insinuates 
itself unforeseen, in some corner neglected by the 
legislator, where insensibly it gains force and grows. 

Men oppose the strongest barriers against open 
tyranny, but they see not the imperceptible insect, 
which gnaws them away, and makes for the invading 
stream an opening that is all the more sure by very 
reason of its concealment from view. 

Of what kind, then, will be the punishments due 
to the crimes of nobles, whose privileges form so 
great a part of the laws of different countries? I 
will not here inquire whether this traditional distinc- 
tion between nobles and commons be advantageous 
in a government, or necessary in a monarchy; nor 
whether it be true that a nobility forms an inter- 
mediate power in restraint of the excesses of the two 



CRIMES AGAINST PERSONAL SECURITY. 207 

extremes, and not rather a caste which, in slavery to 
itself and to others, confines all circulation of merit 
and hope to a very narrow circle, like those fertile and 
pleasant oases scattered among the vast sand-deserts 
of Arabia ; nor whether, supposing it to be true that 
inequality is inevitable and useful in society, it be 
also true that such inequality should subsist between 
classes rather than individuals, and should remain with 
one part of the body politic rather than circulate 
through the whole ;. whether it should rather perpe- 
tuate itself than be subject to constant self-destruc- 
tion and renovation. I will confine myself to the 
punishments proper for nobles, affirming that they 
should be the same for the greatest citizen as for the 
least. Every distinction of honour or of riches pre- 
supposes, to be legitimate, a prior state of equality, 
founded on the laws, which regard all subjects as 
equally dependent on themselves. One must suppose 
the men, who renounced their natural state of des- 
potic independence, to have said : * Let him who is 
more industrious than his fellows have greater ho- 
nours, and let his fame be greater among his suc- 
cessors ; let him who is more prosperous and 
honoured hope even to become more so, but let him 
fear no less than other men to break those conditions 
by virtue of which he is raised above them.' True it 
is that such decrees did not emanate in a convoca- 
tion of the human race, but such decrees exist in the 



208 CRIMES AGAINST PERSONAL SECURITY, 

eternal relations of things ; they do not destroy the 
supposed advantages of a nobility, though they pre- 
vent its abuses ; and they make laws feared, by 
closing every admission to impunity. And if any 
one shall say that the same punishment inflicted 
upon a noble and upon a commoner is not really the 
same, by reason of the diversity of their education, 
and of the disgrace spread over an illustrious family, 
I will reply, that the sensibility of the criminal is not 
the measure of punishment, but the public injury, 
and that this is all the greater when committed by 
the more highly favoured man ; that equality of 
punishment can only be so when considered ex- 
trinsically, being really different in each individual ; 
and that the disgrace of a family can be removed by 
public proofs of kindness on the part of the sovereign 
towards the innocent family of the criminal. And 
who is there but knows that formalities which strike 
the senses serve as reasonings with the credulous and 
admiring populace } 



CHAPTER XXVIII. 

OF INJURIES AND OF HONOUR. 

Injuries that are personal and affect a man's honour 
— that is, the fair share of favour that he has a right to 
expect from others — should be punished with disgrace. 



OF INJURIES AND OF HONOUR, 209 

There is a remarkable contradiction between the 
civil laws, which set so jealous and supreme a guard 
upon individual life and property, and the laws of so- 
called honour^ which set opinion above everything. 
This word honour is one of those that have served as 
the basis for long and brilliant argumentations, with- 
out any fixed or permanent idea being attached to 
it. How miserable is the condition of human minds, 
more distinctly cognisant of the remotest and least 
important ideas about the movements of the heavenly 
bodies, than of those near and important moral no- 
tions, which are ever fluctuating and confused, ac- 
cording as the winds of passion impel them and a 
well-guided ignorance receives and transmits them ! 
But the seeming paradox will vanish, if one con- 
siders, that, as objects become confused when too 
near the eyes, so the too great propinquity of moral 
ideas easily causes the numerous simple ideas which 
compose them to become blended together, to the 
confusion of those clear lines of demarcation de- 
manded by the geometrical spirit, which would fain 
measure exactly the phenomena of human sensibility. 
And the wonder will vanish altogether from the im- 
partial student of human affairs, who will suspect that 
so great a moral machinery and so many restraints 
are perchance not needed, in order to render men 
happy and secure. 

This honour y then, is one of those complex ideas 

P 



2IO OF INJURIES AND OF HONOUR. 

which are an aggregate not only of simple ideas but 
of ideas no less complex than themselves, and which in 
their various presentments to the mind now admit 
and now omit some of their different component ele- 
ments, only retaining some few common ideas, just as 
in algebra several complex quantities admit of a com- 
mon divisor. To find this common divisor in the dif- 
ferent ideas that men form of honour, we must cast a 
rapid glance over the first formation of communities. 
The necessity of remedying the disorders caused 
by the physical despotism of each man singly pro- 
duced the first laws and the first magistrates; this 
was the end and object of the institution of societies, 
and this end has always been maintained, either in 
reality or appearance, at the head of all codes, even 
of those that operated otherwise. But the closer 
contact of men with one another and the progress 
of their knowledge brought about an endless series of 
mutual actions and needs, which ever lay beyond the 
foresight of the laws and below the actual power of 
individuals. From this epoch began the despotism 
of opinion, which afforded the only means for ob- 
taining from others those benefits and averting those 
evils, for which the laws failed to provide. It is this 
opinion that is the trouble equally of the wise man 
and the fool ; that has raised the semblance of virtue 
to higher credit than virtue itself; that even makes 
the rascal turn missionary, because he finds his own 



OF INJURIES AND OF HONOUR. 211 

interest therein. Hence the favour of men became 
not only useful but necessary^ if a man would not 
fall below the general level Hence, not only does the 
ambitious man seek after such favour as useful to 
himself, and the vain man go begging for it as a proof 
of his merit, but the man of honour also may be 
seen to require it as a necessity. This honour is a 
condition that very many men attach to their own 
existence. Bom after the formation of society, it 
could not be placed in the general deposit ; it is rather 
a momentary return to the state of nature, a momen-- 
tary withdrawal of one's self from the dominion of 
those laws which, under the circumstances, fail to 
afford the sufficient defence required of them. 

Hence both in the state of extreme political 
liberty and in that of extreme political subjection the 
ideas of honour disappear or get perfectly confused 
with others. For in the former the despotism of the 
laws renders the pursuit of the favour of others of no 
avail ; and in the latter state the despotism of men, 
by destroying civil existence, reduces everybody to a 
precarious and temporary personality. Honour, there- 
fore, is one of the fundamental principles of those 
monarchies that are a mitigated form of despotism, 
being to them what revolutions are to despotic States, 
namely, a momentary return to the state of nature, 
and a reminder to the chief ruler of the condition of 

primitive equality. 

p 2 



212 



CHAPTER XXIX. 

DUELS. 

From this necessity of the favour of other people 
arose private duels, which sprang up precisely in an 
anarchical state of the laws. It is said they were un- 
known to antiquity, perhaps because the ancients 
did not meet suspiciously armed in the temples, the 
theatres, or with friends ; perhaps because the duel was 
an ordinary and common sight, presented to the people 
by gladiators, who were slaves or low people, and 
freemen disdained to be thought and called private 
gladiators. In vain has it been sought to extirpate 
the custom by edicts of death against any man ac- 
cepting a challenge, for it is founded on that which 
some men fear more than death ; since without the 
favour of his fellows the man of honour foresees him- 
self exposed either to become a merely solitary being, 
a condition insufferable to a sociable man, or to 
become the butt of insults and disgrace which, from 
their constant operation, prevail over the fear of pun- 
ishment. Why is it that the lower orders do not for 
the most part fight duels like the great f Not only 
because they are disarmed, but because the need of 
the favour of others is less general among the people 



DUELS, 213 

than among those who, in higher ranks, regard them- 
selves with greater suspicion and jealousy. 

It is not useless to repeat what others have 
written, namely, that the best method of preventing 
this crime is to punish the aggressor — in other words, 
the man who gives rise to the duel — declaring him 
to be innocent who without his own fault has been 
constrained to defend that which existing laws do 
not assure to him, that is, opinion. 



CHAPTER XXX. 

THEFTS. 

Thefts without violence should be punished by fine. 
He who enriches himself at another's expense ought 
to suffer at his own. But, as theft is generally only 
the crime of wretchedness and despair, the crime of 
that unhappy portion of mankind to whom the right 
of property (a terrible, and perhaps not necessary 
right ^) has left but a bare subsistence ; and as pecu- 
niary penalties increase the number of criminals 
above the number of crimes, depriving the innocent 
of their bread in order to give it to the wicked, the 
fittest punishment will be that kind of servitude which 

' In the original manuscript and the first edition there was no ncU 
It is unknown how it got in, or whether Beccaria was aware of it. 
Cantii, Beccaria^ 127. 



214 THEFTS. 

alone can be called just, namely, the temporary servi- 
tude of a man's labour and person for the compensa- 
tion of society, the personal and absolute dependence 
due from a man who has essayed to exercise an unjust 
superiority over the social compact. But when the 
theft is accompanied with violence, the punishment 
also should be a combination of corporal and servile 
punishment. Some previous writers have shown the 
evident abuse that arises from not distinguishing 
punishments for thefts of violence from those for 
thefts of cunning, thus making an absurd equation be- 
tween a large sum of money and the life of a man. 
For they are crimes of a different nature ; and in 
politics, as in mathematics^ this axiom is most certain, 
that between heterogeneous quantities the terms of 
difference are infinite ; but it is never superfluous to 
repeat what has hardly ever been put into practice. 
Political machinery more than anything else retains 
the motion originally given to it, and is the slowest to 
adapt itself to a fresh one. 



CHAPTER XXXI. 

SMUGGLING, 

Smuggling is a real crime against the sovereign 
and the nation ; but its punishment should not be 
one of disgrace, because its commission incurs no 
disgrace in public opinion. 



SMUGGLING, 215 

Biit why does this crime never entail disgrace upon 
its author, seeing that it is a theft against the prince, 
and consequently against the nation ? I answer, that 
offences which men do not consider can be committed 
against themselves do not interest them enough to 
produce public indignation against their perpetrator. 
Smuggling is an offence of this character. Men in 
general, on whom remote consequences make very 
feeble impressions, do not perceive the harm that 
smuggling can do them, nay, often they enjoy a pre- 
sent advantage from it. They only perceive the injury 
done to the sovereign ; they are not interested, there- 
fore, in withdrawing their favour from a smuggler as 
much as they are fn doing so from a man who com- 
mits a theft in private life, who forges a signature, or 
brings upon them other evils. The principle is self- 
evident, that every sensitive being only interests him- 
self in the evils which he knows. This crime arises 
from the law itself; since the benefit it promises 
increases with the increase of the import duty, and 
therefore the temptation and the facility of committing 
it increases with the circumference of territory to be 
guarded and the small size of the prohibited wares. 
The penalty of losing both the prohibited goods, and 
whatever effects are found with them, is most just ; 
but its efficacy will be greater in proportion as the 
import duty is lower, because men only incur risks 
relative to the advantage derivable from the pros- 
perous issue of their undertaking. 



2i6 SMUGGLING. 

But ought such a crime to be let go unpunished in 
the case of a man who has no effects to lose ? No : 
there are kinds of smuggling of so much importance 
to the revenue (which is so essential and so difficult 
a part of a good system of laws), that such a crime 
deserves a considerable punishment, even imprison- 
ment or servitude ; but imprisonment and servitude 
conformable to the nature of the crime itself. For 
example, th6 prison of the tobacco-smuggler ought 
not to be the same as that of the assassin or the thief ; 
and the labours of the former, limited to the work and 
service of the very treasury he wished to defraud, will 
be the punishments most conformable to the nature 
of his crime. 



CHAPTER XXXII. 

OF DEBTORS. 

The good faith of contracts and the security of 
commerce compel the legislator to assure to cre- 
ditors the persons of insolvent debtors. But I think 
it important to distinguish the fraudulent from the 
innocent bankrupt, the former of whom should 
receive the same punishment as that assigned to 
false coiners, since it is no greater crime to falsify 
a piece of coined money, the pledge of men's mutual 



OF DEBTORS. 217 

obligations, than to falsify those obligations them- 
selves. But the innocent bankrupt — he who, after a 
searching inquiry, has proved before his judges that 
the wickedness or misfortune of some one else, or 
the inevitable vicissitudes of human prudence, have 
despoiled him of his substance — for what barbarous 
reason ought such an one to be thrown into prison, and 
deprived of the only poor benefit that remains to him, 
a barren liberty, in order to suffer the agonies of the 
really guilty, and, in despair at his ruined honesty, 
to repent perhaps of that innocence, by which he 
lived peacefully under the protection of those laws 
that it was not in his power not to offend against ? 
Laws, too, dictated by the powerful by reason of their 
rapacity, and endured by the feeble by reason of that 
hope, which generally glimmers in the human heart, 
and leads us to believe that unfavourable contingen- 
cies are reserved for others, favourable ones for our- 
selves ! Men left to their natural feelings love cruel 
laws, however much, as subject to them themselves, 
it might be for their individual interest that they 
should be mitigated ; because their fear of being in- 
jured by others is greater than their desire to inflict 
injuries themselves. 

To return to the innocent bankrupt. Granting 
that his obligation should not be extinguishable by 
anything short of total payment; granting that he 
should not be suffered to withdraw from it without the 



2l8 OF DEBTORS. 

consent of the parties interested, nor to transfer under 
the dominion of other laws his industry, which should 
perforce be employed, under penalties, to enable him 
to satisfy his creditors in proportion to his profits ; 
what fair pretext, I ask, can there be, such as the 
security of commerce or the sacred right of property, 
to justify the deprivation of his liberty ? Such a de- 
privation is only of use, when it is sought to discover 
the secrets of a supposed innocent bankrupt by the 
evils of servitude, a most unusual circumstance where 
a rigorous inquiry is instituted. I believe it to be a 
maxim in legislation, that the amount of political 
inconveniences varies directly in proportion to the 
injury they do the public, and inversely in propor- 
tion to the difficulty of their proof. 

It would be possible to distinguish a case of fraud 
from a grave fault, a grave fault from a light one, and 
this again from perfect innocence ; then to affix to the 
first the penalties due for crimes of falsification ; to the 
second lesser penalties, but with the loss of personal 
liberty ; and, reserving for the last degree the free choice 
of the means of recovery, to deprive the third degree 
of such liberty, whilst leaving it to a man's creditors. 
But the distinction between grave and light should 
be fixed by the blind impartiality of the laws, not 
by the dangerous and arbitrary wisdom of a judge. 
The fixings of limits are as necessary in politics 
as in mathematics, equally in the measurement 



OF DEBTORS, 219 

of the public welfare as in the measurement of mag- 
nitudes.* 

How easily might the farseeing legislator hinder 
a large part of culpable bankruptcy, and relieve the 
misfortunes of the industrious and innocent! The 
public and open registration of all contracts ; freedom 
to every citizen to consult them in well-kept docu- 
ments ; a public bank formed by wisely-apportioned 
taxes upon prosperous commerce, and intended for 
the timely relief of any unfortunate and innocent 
member of the company ; — such measures would have 
no real drawback and might produce numberless ad- 
vantages. But easy, simple, and great laws, which 
await but the signal of the legislator, in order to scat- 
ter riches and strength through a nation — laws which 
would be celebrated from generation to generation in 
hymns of gratitude — are either the least thought of or 
the least desired of all. An uneasy and petty spirit, the 
timid prudence of the present moment, and a circum- 
spect stiffness against innovations, master the feelings 
of those who govern the complex actions of mankind. 

' Commerce and property are not themselves an end of the social 
compact, but they may be a means to reach that end. To expose 
all the members of society to evils, for the production of which so many 
circumstances work together, would be to subordinate ends to means — a 
paralogism of all the sciences, but especially of political science, and 
one into which I fell in the first editions, where I said that the 
innocent bankrupt ought to be kept guarded in pledge of his debts 
or employed as a slave to labour for his creditors. I am ashamed of 
having so written. I have been accused of irreligion without deserving 
to be, and I have been accused of sedition without deserving to be. I 
offended the rights of humanity, and no one reproached me for it I 



320 



CHAPTER XXXIII. 

OF THE PUBLIC TRANQUILLITY. 

Lastly, among the crimes of the third kind are 
especially those which disturb the public peace and 
civic tranquillity ; such as noises and riots in the pub- 
lic streets, which were made for the convenience of men 
and traffic, or fanatical sermons that excite the easily 
roused passions of the curious multitude. For their 
passions gather force from the number of hearers, and 
more from a certain obscure and mysterious enthu- 
siasm, than from clear and quiet reasoning, which 
never has any influence over a large mass of men. 

The lighting of a city by night at the public 
expense ; the distribution of guards in the different 
quarters; simple moral discourses on religion, but 
only in the silent and holy quiet of churches, protected 
by public authority ; speeches on behalf of private and 
public interests in national assemblies, parliaments, 
or wherever else the majesty of sovereignty resides 
— all these are efficacious means for preventing the 
dangerous condensation of popular passions. These 
means are a principal branch of that magisterial 
vigilance which the French call police ; but if this is 
exercised by arbitrary laws, not laid down in a code 
of general circulation, a door is opened to tyranny, 



OF THE PUBLIC TRANQUILLITY, 221 

which ever surrounds all the boundaries of political 
liberty. I find no exception to this general axiom, 
that ' Every citizen ought to know when his actions 
are guilty or innocent* If censors, and arbitrary ma- 
gistrates in general, are necessary in any government, 
it is due to the weakness of its constitution, and is 
foreign to the nature of a well organised government. 
More victims have been sacrificed to obscure tyranny 
by the uncertainty of their lot than by public and 
formal cruelty, for the latter revolts men's minds 
more than it abases them. The true tyrant always be- 
gins by mastering opinion, the precursor of courage ; 
for the latter can only show itself in the clear light of 
truth, in the fire of passion, or in ignorance of danger. 



CHAPTER XXXIV. 

OF POLITICAL IDLENESS. 

Wise governments suffer not political idleness in 
the midst of work and industry. I mean by political 
idleness that existence which contributes nothing to 
society either by its work or by its wealth ; which 
gains without ever losing ; which, stupidly admired 
and reverenced by the vulgar, is regarded by the wise 
man with disdain, and with pity for the beings who are 
its victims ; which, being destitute of that stimulus of 
an active life, the necessity of preserving or increasing 



222 OF POLITICAL IDLENESS. 

the store of worldly goods, leaves to the passions of 
opinion, not the- least strong ones, all their energy. 
This kind of idleness has been confused by austere 
declaimers with that of riches, gathered by industry ; 
but it is not for the severe and narrow virtue of some 
censors, but for the laws, to define what is punishable 
idleness. He is not guilty of political idleness, who 
enjoys the fruits of the virtues or vices of his ancestors 
and sells in exchange for his pleasures bread and 
existence to the industrious poor, who carry on peace- 
fully the silent war of industry against wealth, instead 
of by force a war uncertain and sanguinary. The 
latter kind of idleness is necessary and useful, in pro- 
portion as society becomes wider and its government 
more strict. 



CHAPTER XXXV. 

SUICIDE AND ABSENCE. 

Suicide is a crime to which a punishment properly 
so called seems inadmissible, since it can only fall upon 
the innocent or else upon a cold and insensible body. 
If the latter mode of punishing the crime makes no 
more impression on the living than would be made by 
inflicting violence on a statue, the other mode is 
unjust and tyrannical, inasmuch as political freedom 
necessarily presupposes the purely personal nature of 



SUICIDE AND ABSENCE. 223 

punishment. Men love life only too much, and 
everything that surrounds them confirms them in this 
love. The seductive image of pleasure, and hope, 
that sweetest illusion of mortals, for the sake of 
which they swallow large draughts of evil mixed with 
a few drops of contentment, are too attractive, for one 
ever to fear, that the necessary impunity of such a 
crime should exercise any general influence. He 
who fears pain, obeys the laws ; but death puts an end 
in the body to all the sources of pain. What, then, 
will be the motive which shall restrain the desperate 
hand of the suicide i 

Whoever kills himself does a lesser evil to society 
than he who for ever leaves the boundaries of his 
country, for whilst the former leaves therein all his 
substance, the latter transports himself together with 
part of his property. Nay, if the power of a com- 
munity consists in the number of its members, the 
man who withdraws himself to join a neighbouring 
nation does twice as great an injury as he who simply 
by death deprives society of his existence. The 
question, therefore, reduces itself to this : whether 
the leaving to each member of a nation a perpetual 
liberty to absent himself from it be advantageous or 
detrimental. 

No law ought to be promulgated that has not 
force to back it, or that the nature of things deprives 
of validity ; and as minds are ruled by opinion, which 



224 SUICIDE AND ABSENCE, 

itself follows the slow and indirect impressions of 
legislation, whilst it resists those that are direct and 
violent, the most salutary laws become infected with 
the contempt felt for useless laws, and are regarded 
rather as obstacles to be surmounted than as the 
deposit of the public welfare. 

Moreover, if, as was said, our feelings are limited in 
quantity, the greater respect men may have for things 
outside the laws, the less will remain to them for the 
laws themselves. From this principle the wise ad- 
ministrator of the public happiness may draw some 
useful consequences, the exposition of which would 
lead me too far from my subject, which is to demon- 
strate the uselessness of making a prison of the 
State. A law with such an object is useless, because, 
unless inaccessible rocks or an unnavigable sea 
separate a country from all others, how will it be 
possible to close all the points of its circumference 
and keep guard over the guardians themselves } A 
man who transports everything he has with him, 
when he has done so cannot be punished. Such a 
crime once committed can no longer be punished, 
and to punish it beforehand would be to punish men's 
wills, not their actions, to exercise command over 
their intention, the freest part of human nature, and 
altogether independent of the control of human laws. 
The punishment of an absent man in the property he 
leaves behind him would ruin all international com- 



SUICIDE AND ABSENCE, 225 

merce, to say nothing of the facility of collusion, 
which would be unavoidable, except by a tyrannical 
control of contracts. And his punishment on his re- 
turn, as a criminal, would prevent the reparation of the 
evil done to society, by making all removals perpetual. 
The very prohibition to leave a country augments 
people's desire to do so, and is a warning to foreigners 
not to enter it. 

What should we think of a government that has 
no other means than fear for keeping men in a 
country, to which they are naturally attached from 
the earliest impressions of their infancy ? The surest 
way of keeping them in their country is to augment 
the relative welfare of each of them. As every effort 
should be employed to turn the balance of commerce 
in our own favour, so it is the greatest interest of a 
sovereign and a nation, that the sum of happiness, 
compared with that of neighbouring nations, should 
be greater at home than elsewhere. The pleasures 
of luxury are not the principal elements in this 
happiness, however much they may be a necessary 
remedy to that inequality which increases with a 
country's progress, and a check upon the tendency of 
wealth to accumulate in the hands of a single ruler.^ 

* Where a country's boundaries increase at a greater rate than its 
population, there luxury favours despotism, firstly, because scarcity of 
men means less industry, and less industry means a greater dependence 
of poverty upon wealth, and greater difficulty and less dread of a com- 
bination of the oppressed against their oppressors; secondly, because 

Q 



226 SUICIDE AND ABSENCE. 

But commerce and the interchange of the plea- 
sures of luxury have this drawback, that however 
many persons are engaged in their production, they 
yet begin and end with a few, the great majority of 
men only enjoying the smallest share of them, so 
that the feeling of misery, which depends more on 
comparison than on reality, is not prevented. But 
the principal basis of this happiness I speak of is 
personal security and liberty under the limitations of 
the law ; with these the pleasures of luxury favour 
population, and without them they become the in- 
strument of tyranny. As the noblest wild beasts and 
the freest birds remove to solitudes and inaccessible 
forests, leaving the fertile and smiling plains to the 
wiles of man, so men fly from pleasures themselves 
when tyranny acts as their distributor. 

It is, then, proved that the law which imprisons 

the flatteries, the services, the distinctions, the submission, which cause 
the difference between the strong man and the feeble to be all the 
more felt, are more easily obtained from few men than from many, 
since men are more independent the less subject they are to observation, 
and are the less subject to observation the more numerous they are. 
But where the population increases at a faster rate than the boundaries 
are enlarged, luxury is opposed to despotism, because it gives life to 
men's industry and activity, and the necessity of the poor man offers too 
many pleasures and comforts to the rich man for the pleasures of pure 
ostentation, which increase the idea of dependence, to have the greater 
place. Hence it is observable that in large, weak, and depopulated 
States, unless there are counteracting causes, the luxury of ostentation 
prevails over the luxury of comfort ; but in populous rather than large 
States the luxury of comfort always causes the diminution of that of 
ostentation. 



SUICIDE AND ABSENCE, 227 

subjects in their own country is useless and unjust. 
The punishment, therefore, of suicide is equally so ; 
and consequently, although it is a fault punishable by 
God, for He alone can punish after death, it is not a 
crime in the eyes of men, for the punishment they 
inflict, instead of falling on the criminal himself, falls on 
his family. If anyone objects, that such a punishment 
can nevertheless draw a man back from his determi- 
nation to kill himself, I reply, that he who calmly 
renounces the advantages of life, who hates his exist- 
ence here below to such an extent as to prefer to it an 
eternity of misery, is not likely to be moved by the 
less efficacious and more remote consideration of his 
children or his relations. 



CHAPTER XXXVI. 

CRIMES OF DIFFICULT PROOF. 

There are some crimes which, are at the same time 
frequent in society and yet difficult to prove, as adul- 
tery, pederasty, infanticide. 

Adultery is a crime which, politically considered, 
derives its force and direction from two causes, 
namely, from the variable laws in force among man- 
kind, and from that strongest of all attractions which 
draws one sex towards the other.^ 

* This attraction resembles in many points that of gravitation, which 

Q a 



228 CRIMES OF DIFFICULT PROOF, 

Had I to address nations still destitute of the 
light of religion, I would say that there is yet another 
considerable difference between adultery and other 
crimes. For it springs from the abuse of a constant 
and universal human impulse, an impulse anterior to, 
nay, the cause of the institution of society ; whereas 
other crimes, destructive of society, derive their 
origin rather from momentary passions than from 
a natural impulse. To anyone cognisant of history 
and his kind, such an impulse will seem to be equi- 
valent in the same climate to a constant quantity ; 
and if this be so, those laws and customs wnich seek 
to diminish the sum-total will be useless or dangerous, 
because their effect will be to burthen one half of 
humanity with its own needs and those of others ; 
but those laws, on the contrary, will be the wisest, 
which following, so to speak, the gentle inclination of 
the plain, divide the total amount, causing it to ramify 
into so many equal and small portions, that aridity 
or overflowing are equally preventecS everywhere. 
Conjugal fidelity is always proportioned to the num- 
ber and to the freedom of marriages. Where mar- 
riages are governed by hereditary prejudices, or 

moves the universe, because, like it, it diminishes with distance ; and if 
the one force controls all the movements of physical bodies, the other 
controls those of the mind during the continuance of its sway. But 
they differ in this, that, whilst gravitation is counterbalanced by ob- 
stacles, the other for the most part gains force and strength from the 
increase of the very obstacles opposed to it. 



CRIMES OF DIFFICULT PROOF 229 

bound or loosened by parental power, there the 
chains are broken by secret intrigue, in despite of 
ordinary morality, which, whilst conniving at the 
causes of the offence, makes it its duty to declaim 
against the results. But there is no need of such 
reflections for the man who, living in the light of 
true religion, has higher motives to correct the force 
of natural effects. Such a crime is of so instanta- 
neous and secret commission, so concealed by the 
very veil the laws have drawn round it (a veil ne- 
cessary, indeed, but fragile, and one that enhances, 
instead of diminishing, the value of the desired ob- 
ject), the occasions for it are so easy, and the con- 
sequences so doubtful, that the legislator has it more 
in his power to prevent than to punish it As a 
general rule, in every crime which by its nature must 
most frequently go unpunished, the penalty attached 
to it becomes an incentive. It is a quality of our 
imagination, that difficulties, if they are not insur- 
mountable nor too difficult, relatively to the mental 
energy of the particular person, excite the imagination 
more vividly, and place the object desired in larger 
perspective ; for they serve as it were as so many 
barriers to prevent an erratic and flighty fancy from 
quitting hold of its object ; and, while they compel 
the imagination to consider the latter in all its bear- 
ings, it attaches itself more closely to the pleasant 




230 CRIMES OF DIFFICULT PROOF. 

side, to which our mind most naturally inclines, than 
to the painful side, which it places at a distance. 

Pederasty, so severely punished by the laws, and 
so readily subjected to the tortures that triumph ovei* 
innocence, is founded less on the necessities of man, 
when living in a state of isolation and freedom, than 
on his passions when living in a state of society and 
slavery. It derives its force not so much from satiety of 
pleasure as from the system of education now in vogue, 
which, beginning by making men useless to themselves 
in order to make them useful to others, causes, by its 
too strict seclusion, a waste of all vigorous develop- 
ment, and accelerates the approach of old age. 

Infanticide equally is the result of the unavoid- 
able dilemma in which a woman is placed who from 
weakness or by violence has fallen. Finding herself 
placed between the alternative of infamy on the one 
side, and the death of a being insentient of its pains 
on the other, how can she fail to prefer the latter to 
the infallible misery awaiting both herself and her 
unhappy offspring } The best way to prevent this 
crime would be to give efficient legal protection to 
weakness against tyranny, which exaggerates those 
vices that cannot be hidden by the cloak of virtue. 

I do not pretend to diminish the just wrath these 
crimes deserve ; but, in indicating their sources, I 
think myself justified in drawing one general conclu- 
sion, and that is, that no punishment for a crime can 



CRIMES OF DIFFICULT PROOF. 231 

be called exactly just — that is, necessary — so long as 
the law has not adopted the best possible means, in 
the circumstances of a country, to prevent the crimes 
it punishes. 



CHAPTER XXXVII. 

OF A PARTICULAR KIND OF CRIME. 

The reader of this treatise will perceive that I have 
omitted all reference to a certain class of crime, 
which has deluged Europe with human blood; a 
crime which raised those fatal piles, where living 
human bodies served as food for the flames, and 
where the blind multitude sought a pleasant spec- 
tacle and a sweet harmony from the low dull groans, 
emitted by wretched sufferers from volumes of black 
smoke, the smoke of human limbs, whilst their bones 
and still palpitating entrails were scorched and con- 
sumed by the flames. But reasonable men will see 
that the place, the age, and the subject suffer me not 
to inquire into the nature of such a crime. It would 
be too long and remote from my subject to show, 
how a perfect uniformity of thought ought, contrary 
to the practice of many countries, to be a necessity 
in a State ; how opinions, which only differ by the 
most subtle and imperceptible degrees, and are alto- 
gether beyond the reach of human intelligence, can 



232 OF A PARTICULAR KIND OF CRIME. 

yet convulse society, when one of them is not legally 
authorised in preference to the others ; and how the 
nature of opinions is such, that, whilst some become 
clearer by virtue of their conflict and opposition, 
(those that are true floating and surviving, but those 
that are false sinking to oblivion,) others again, with 
no inherent self-support, require to be clothed with 
authority and power. Too long would it be to prove, 
that howsoever hateful may seem the government of 
force over human minds, with no other triumphs to 
boast of but dissimulation and debasement, and how- 
soever contrary it may seem to the spirit of gentle- 
ness and fraternity, commanded alike by reason and 
the authority we most venerate, it is yet necessary 
and indispensable. All this should be taken as 
clearly proved and comformable to the true interests 
of humanity, if there be anyone who, with recognised 
authority, acts accordingly. I speak only of crimes 
that spring from the nature of humanity and the 
social compact ; not of sins, of which even the tem- 
poral punishments should be regulated by other prin- 
ciples than those of a narrow philosophy. 



233 

,4' 



CHAPTER XXXVIII. 

FALSE IDEAS OF UTILITY. 

False ideas of utility entertained by legislators are 
one source of errors and injustice. It is a false idea 
of utility which thinks more of the inconvenience of 
individuals than of the general inconvenience ; which 
tyrannises over men's feelingSj instead of arousing them 
into action ; which says to Reason, * Be thou subject.* 
It is a false idea of utility which sacrifices a thousand 
real advantages for one imaginaiy or trifling drawback ; 
which would deprive men of the use of fire because it 
burns or of water because it drowns ; and whose only 
remedy for evils is the entire destruction of their 
causes. Of such a kind are laws prohibiting the wear- 
ing of arms, for they only disarm those who are not 
inclined nor resolved to commit crimes, whilst those 
who have the courage to violate the most sacred laws 
of humanity, the most important in the law-code, are 
little likely to be induced to respect those lesser and 
purely arbitrary laws, which are easier to contravene 
with impunity ; and the strict observance of which 
would imply the destruction of all personal liberty, 
(that liberty dearest to the enlightened legislator and to 
men generally,) subjecting the innocent to vexations 



23i SOURCES OF ERl^OR IN' LEGISLATION. 

which only the guilty deserve. These laws, whilst 
they make still worse the position of the assailed, 
improve that of their assailants ; they increase rather 
than diminish the number of homicides, owing to the 
greater confidence with which an unarmed man may 
be attacked than an armed one. They are not so much 
preventive of crimes as fearful of them, due as they 
are to the excitement roused by particular facts, not 
to any reasoned consideration of the advantages or 
disadvantages of a general decree. Again, it is a 
false idea of utility, which would seek to impart to a 
multitude of intelligent beings the same symmetry 
and order that brute and inanimate matter admits of; 
which neglects present motives, the only constantly 
powerful influences with the generality of men, to 
give force to remote and future ones, the impression 
of which is very brief and feeble, unless a force of 
imagination beyond what is usual makes up, by its 
magnifying power, for the object's remoteness. Lastly, 
it is a false idea of utility, which, sacrificing the thing 
to the name, distinguishes the public good from that 
of every individual member of the public. There is 
this difference between the state of society and the 
state of nature, that in the latter a savage only com- 
mits injuries against others with a view to benefit 
himself, whilst in the former state men are sometimes 
moved by bad laws to injure others without any cor- 
responding benefit to themselves. The tyrant casts 



SOURCES OF ERROR 11/ LEGISLATION. 435 

fear and dread into the minds of his slaves, but they 
return by repercussion with all the greater force to 
torment his own breast. The more confined fear is 
in its range, so much the less dangerous is it to him 
who makes it the instrument of his happiness ; but 
the more public it is and the largfer the number of 
people it agitates, so much the more likely is it that 
there will be some rash, some desperate, or some 
clever and bold man who will try to make use of 
others for his own purpose, by raising in them hopes, 
that are all the more pleasant and seductive as the 
risk incurred in them is spread over a greater number, 
and as the value attached by the wretched to their 
existence diminishes in proportion to their misery. 
This is the reason why offences ever give rise to fresh 
ones: that hatred is a feeling much more durable 
than love, inasmuch as it derives its force from the 
very cause that weakens the latter, namely, from the 
continuance of the acts that produce it. 



CHAPTER XXXIX. 

OF FAMILY SPIRIT. 



Such fatal and legalised iniquities as have been 
referred to have been approved of by even the wisest 
men and practised by even the freest republics, owing 
to their having regarded society rather as an aggregate 



1'. 



236 .'. OF FAMIL Y SPIRIT, 



■.» 



of famili'elg^'than as one of individuals. Suppose there 
• to be 100,000 individuals, or 20,000 families, of five 
persons each, including its representative head : if the 
association is constituted by families, it will consist of 
20,000 men and 80,000 slaves ; if it be an association 
of individuals, it will consist of 100,000 citizens, and 
not a single slave. In the first case there will be a 
republic, formed of 20,000 little sovereignties ; in the 
second the republican spirit will breathe, not only in 
the market-places and meetings of the people, but 
also within the domestic walls, wherein lies so great a 
part of human happiness or misery. In the first case, 
also, as laws and customs are the result of the habitual 
sentiments of the members of the republic — that is, 
of the heads of families — the monarchical spirit will 
gradually introduce itself and its effects will only be 
checked by the conflicting interests of individuals, not 
by a feeling that breathes liberty and equality. Fa- 
mily spirit is a spirit of detail^ and confined to facts 
of trifling importance. But the spirit which regulates 
communities is master of general principles, over- 
lool« the totality of facts, and combines them into 
kinds and classes^ of importance to the welfare of the 
greater number. In the community of families sons 
remain in the power of the head of the family so 
long as he lives, and are obliged to look forward to 
his death for an existence dependent on the laws 
alone. Accustomed to submission and fear in the 



OF FAMILY SPIRIT, 237 

freshest and most vigorous time of life, when their 
feelings are less modified by that timidity, arising 
from experience, which men call moderation, how 
shall they withstand those obstacles in the way of 
virtue which vice ever opposes, in that feeble and 
failing period of life when despair of living to see 
the fruit of their labours hinders them from making 
vigorous changes? 

When the community is one of individuals, the 
subordination that prevails in the family prevails by 
agreement, not by compulsion ; and the sons, as soon 
as their age withdraws them from their state of na- 
tural dependence, arising from their feebleness and 
their need of education and protection, become free 
members of the domestic commonwealth, subjecting 
themselves to its head, in order to share in its advan- 
tages, as free men do by society at large. In the 
other condition the sons — that is, the largest and 
most useful part of a nation — are placed altogether 
at the mercy of their fathers ; but in this one there 
is no enjoined connection between them, beyond that 
sacred and inviolable one of the natural ministration 
of necessary aid, and that of gratitude for benefits 
received, which is less often destroyed by the na- 
tive wickedness of the human heart than by a law- 
ordained and ill-conceived state of subjection. 

Such contradictions between the laws of a family 
and the fundamental laws of a State are a fertile 



238 OF FAMIL Y SPIRIT. 

source of other contradictions between public and 
private morality, giving rise consequently to a per- 
petual conflict in every individual mind. For whilst 
private morality inspires fear and subjection, public 
morality teaches courage and freedom ; whilst the 
former inculcates the restriction of well-doing to a 
small number of persons indiscriminately, the latter 
inculcates its extension to all classes of men ; and 
whilst the one enjoins the constant sacrifice of self to 
a vain idol, called *the good of the family' (which is 
frequently not the good of any single member that com- 
poses it), the other teaches men to benefit themselves, 
provided they break not the laws, and incites them, 
by the reward of enthusiasm, which is the precursor of 
their action, to sacrifice themselves to the good of their 
country. Such contradictions make men scorn to 
follow virtue, which they find so complicated and 
confused, and at that distance from them, which 
objects, both moral and physical, derive from their 
obscurity. How often it happens that a man, in 
reflecting on his past actions, is astonished at find- 
ing himself dishonest. The larger society grows, the 
smaller fraction of the whole does each member of 
it become, and the more is the feeling of the com- 
monwealth diminished, unless care be taken by the 
laws to reinforce it. Societies, like human bodies, 
have their circumscribed limits, extension beyond 
which involves inevitably a disturbance of their 



OF FAMILY SPIRIT, ^ ^39 

economy. The size of a State ought apparently to 
vary inversely with the sensibility of its component 
parts ; otherwise, if both increase together, good laws 
will find, in the very benefit they have effected, an 
obstacle to the prevention of crimes. Too large a 
republic can only save itself from despotism by a 
process of subdivision, and a union of the parts into 
so many federative republics. But how effect this, 
save by a despotic dictator with the courage of Sylla 
and as much genius for construction as he had for 
destruction } If such a man be ambitious, the glory 
of all the ages awaits him ; and if he be a philoso- 
pher, the blessings of his fellow-citizens will console 
him for the loss of his authority, even should he not 
become indifferent to their ingratitude. In propor- 
tion as the feelings which unite us to our own nation 
are weakened, do those for the objects immediately 
around us gain in strength ; and it is for this reason 
that under the severest despotism the strongest friend- 
ships are to be found, and that the family virtues, 
ever of an exalted character, are either the most 
common or the only ones. It is evident, therefore, 
how limited have been the views of the great ma- 
jority of legislators. 



240 



CHAPTER XL. 

OF THE TREASURY. 

There was a time when nearly all penalties were 
pecuniary. Men s crimes were the prince's patrimony ; 
attempts against the public safety were an object of 
gain, and he whose function it was to defend it found 
his interest in seeing it assailed. The object of 
punishment was then a suit between the treasury, 
which exacted the penalty, and the criminal : it was 
a civil business, a private rather than a public dispute, 
which conferred upon the treasury other rights than 
those conferred upon it by the calls of the public 
defence, whilst it inflicted upon the offender other 
grievances than those he had incurred by the necessity 
of example. The judge was, therefore, an advocate 
for the treasury rather than an impartial investi- 
gator of the truth, an agent for the Chancellor of the 
Exchequer i-ather than the protector and minister of 
the laws. But as in this system to confess a fault 
was the same thing as to confess oneself a debtor to 
the treasury, that being the object of the criminal 
procedure in those days, so the confession of a crime, 
and a confession so managed as to favour and not to 
hurt fiscal interests, became and still remains (effects 
always outlasting their causes so long) the c^. .itre 



OF THE TREASURY. 2^1 

point of all criminal procedure. Without such con- 
fession a criminal convicted by indubitable proofs 
will incur a penalty less than the one legally at- 
tached to his crime; and without it he will escape 
torture for other crimes of the same sort which he 
may have committed. With it, on the other hand, 
the judge becomes master of a criminal's person, to 
lacerate him by method and formality, in order to 
get from him as from so much stock all the profit he 
can. Given the fact of the crime as proved, confes- 
sion affords a convincing proof; and, to make this 
proof still less open to doubt, it is forcibly exacted 
by the agonies and despair of physical pain ; whilst 
at the same time a confession that is extra-judicial, 
that is tendered calmly and indifferently, and without 
the overpowering fears of a trial by torture, is held in- 
sufficient for a verdict of guilt. Inquiries and proofs, 
which throw light upon the fact, but which weaken the 
claims of the treasury, are excluded ; nor is it out of 
consideration for his wretchedness and weakness that 
a criminal is sometimes spared from torture, but out of 
regard for the claims which this entity, now mythical 
and inconceivable, might lose. The judge becomes 
the enemy of the accused, who stands in chains before 
him, the prey of misery, of torments, and the most 
terrible future ; he does not seek to find the truth of 
a fact, but to find the crime in the prisoner, trying to 
eiVci*ap him, and thinking it to the loss of his own 

R 



242 OF THE TREASURY. 

credit if he fail to do so, and to the detriment of 
that infallibility which men pretend to possess about 
everything. The evidence that justifies a man's 
imprisonment rests with the judge ; in order that a 
man may prove himself innocent, he must first be 
declared guilty : that is called an offmsive prosecu- 
tion ; and such are criminal proceedings in nearly 
every part of enlightened Europe, in the eighteenth 
century. The real prosecution, the informative one 
—that is, the indifferent inquiry into a fact, such as 
reason enjoins, such as military codes employ, and 
such as is used even by Asiatic despotism in trivial 
and unimportant cases — is of very scant use in 
the tribunals of Europe. What a complex maze of 
strange absurdities, doubtless incredible to a more 
fortunate posterity ! Only the philosophers of that 
time will read in the nature of man the possible 
actuality of such a system as now exists. 



CHAPTER XLI. 

THE PREVENTION OF CRIMES— OF KNOWLEDGE — 
MAGISTRATES —REWARDS — EDUCATION. 

It is better to prevent crimes than to punish them. 
This is the chief aim of every good system of legis- 
lation, which is the art of leading men to the greatest 
possible happiness or to the least possible misery, 



PREVENTION OF CRIMES. 243 

according to calculation of all the goods and evils of 
life. But the means hitherto employed for this end 
are for the most part false and contrary to the end 
proposed. It is impossible to reduce the turbulent 
activity of men to a geometrical harmony without 
any irregularity or confusion. As the constant and 
most simple laws of nature do not prevent aberra- 
tions in the movements of the planets, so, in the in- 
finite and contradictory attractions of pleasure and 
pain, disturbances and disorder cannot be prevented 
by human laws. Yet this is the chimera that narrow- 
minded men pursue, when they have power in their 
hands. To prohibit a number of indifferent acts is 
not to prevent the crimes that may arise from them, 
but it is to create new ones from them ; it is to give 
capricious definitions of virtue and vice which are 
proclaimed as eternal and immutable in their nature. 
To what should we be reduced if everything had to 
be forbidden us . which might tempt us to a crime } 
It would be necessary to deprive a man of the use 
of his senses. For one motive that drives men to 
commit a real crime there are a thousand that drive 
them to the commission of those indifferent acts 
which are called crimes by bad laws ; and if the like- 
lihood of crimes is proportioned to the number of 
motives to commit them, an increase of the field of 
crimes is an increase of the likelihood of their com- 
mission. The majority of laws are nothing but 



244 PREVENTION OF CRIMES. 

privileges, or a tribute paid by all to the convenience 
of some few. 

Would you prevent crimes, then cause the laws 
to be clear and simple, bring the whole force of a 
nation to bear on their defence, and suffer no part of 
it to be busied in overthrowing them. Make the laws 
to favour not so much classes of men as men them- 
selves. Cause men to fear the laws and the laws 
alone. Salutary is the fear of the law, but fatal and 
fertile in crime is the fear of one man of another. 
Men as slaves are more sensual, more immoral, more 
cruel than free men ; and, whilst the latter give their 
minds to the sciences or to the interests of their 
country, setting great objects before them as their 
model, the former, contented with the passing day, 
seek in the excitement of libertinage a distraction 
from the nothingness of their existence, and, accus- 
tomed to an uncertainty of result in everything, they 
look upon the result of their crimes as uncertain too, 
and so decide in favour of the passion that tempts 
them. If uncertainty of the laws affects a nation, 
rendered indolent by its climate, its indolence and 
stupidity is thereby maintained and increased; if 
it affects a nation, which though fond of pleasure is 
also full of energy, it wastes that energy in a number 
of petty cabals and intrigues, which spread distrust in 
every heart, and make treachery and dissimulation 
the foundation of prudence; if, again, it affects a 



PREVENTION OF CRIMES, 245 

courageous and brave ^nation, the uncertainty is 
ultimately destroyed, after many oscillations from 
liberty to servitude, and from servitude back again 
to liberty. 

Would you prevent crimes, then see that enlighten- 
ment accompanies liberty. The evils that flow from 
knowledge are in inverse ratio to its diffusion; the bene- 
fits directly proportioned to it. A bold impostor, who is 
never a commonplace man, is adored by an ignorant 
people, despised by an enlightened one. Knowledge, 
by facilitating comparisons between objects and mul- 
tiplying men*s points of view, brings many different 
notions into contrast, causing them to modify one 
another, all the more easily as the same views and 
the same difficulties are observed in others. In the 
face of a widely diffused national enlightenment the 
calumnies of ignorance are silent, and authority, dis- 
armed of pretexts for its manifestation, trembles ; 
whilst the rigorous force of the laws remains un- 
shaken, no one of education having any dislike to the 
clear and useful public compacts which secure the 
common safety, when he compares the trifling and 
useless liberty sacrificed by himself with the sum- 
total of all the liberties sacrificed by others, who 
without the laws might have been hostile to himself. 
Whoever has a sensitive soul, when he contemplates 
a code of well-made laws, and finds that he has only 
lost the pernicious liberty of injuring others, will feel 



246 PREVENTION OF CRIMES. 

himself constrained to bless the throne and the 
monarch that sits upon it. 

It is not true that the sciences have always been 
injurious to mankind ; when they were so, it was an 
inevitable evil. The multiplication of the human 
race over the face of the earth introduced war, the 
ruder arts, and the first laws, mere temporary agree- 
ments which perished with the necessity that gave 
rise to them. This was mankind's primitive philo- . 
sophy, the few elements of which were just, because 
the indolence and slight wisdom of their framers pre- 
served them from error. But with the multiplication 
of men there went ever a multiplication of their 
wants. Stronger and more lasting impressions were, 
therefore, needed, in order to turn them back from 
repeated lapses to that primitive state of disunion 
which each return to it rendered worse. Those primi- 
tive delusions, therefore, which peopled the earth with 
false divinities and created an invisible universe that 
governed our own, conferred a great benefit — I mean 
a great political benefit — upon humanity. Those 
men were benefactors of their kind, who dared to 
deceive them and drag them, docile and ignorant, to 
worship at the altars. By presenting to them objects 
that lay beyond the scope of sense and fled from 
their grasp the nearer they seemed to approach them 
— never despised, because never well understood — they 
concentrated their divided passions upon a single ob- 



PREVENTION OF CRIMES. 247 

ject of supreme interest to them. These were the 
first steps of all the nations that formed themselves 
out of savage tribes ; this was the epoch when larger 
communities were formed, and such was their necessary 
and perhaps their only bond. I say nothing of that 
chosen people of God, for whom the most extraor- 
dinary miracles and the most signal favours were a 
substitute for human policy. But as it is the quality 
of error to fall into infinite subdivisions, so the sciences 
that grew out of it made of mankind a blind fanatical 
multitude, which, shut up within a close labyrinth, 
collides together in such confusion, that some sensi- 
tive and philosophical minds have regretted to this 
day the ancient savage state. That is the first epoch 
in which the sciences or rather opinions are in- 
jurious. 

The second epoch of history consists in the hard 
and terrible transition from errors to truth, from the 
darkness of ignorance to the light. The great clash 
between the errors which are serviceable to a few 
men of power and the truths which are serviceable 
to the weak and the many, and the contact and fer- 
mentation of the passions at such a period aroused, 
are a source of infinite evils to unhappy humanity. 
Whoever ponders on the different histories of the 
world, which after certain intervals of time are so 
much alike in their principal episodes, will therein 
frequently observe the sacrifice of a whole generation 



248 PREVENTION OF CRIMES. 

to the welfare of succeeding ones, in the painful but 
necessary transition from the darkness of ignorance 
to the light of philosophy, and from despotism to 
freedom, which result from the sacrifice. But when 
truth, whose progress at first is slow and afterwards 
rapid (after men*s minds have calmed down and the 
fire is quenched that purged a nation of the evils it . 
suffered), sits as the companion of kings upon the 
throne, and is reverenced and worshipped in the 
parliaments of free governments, who will ever dare 
assert that the light which enlightens the people is 
more injurious than darkness, and that acknowledg- 
ing the true and simple relations of things is perni- 
cious to mankind ? 

If blind ignorance is less pernicious than confused 
half-knowledge, since the latter adds to the evils of 
ignorance those of error, which is unavoidable in a 
narrow view of the limits of truth, the most precious 
gift that a sovereign can make to himself or to his 
people is an enlightened man as the trustee and 
guardian of the sacred laws. Accustomed to see the 
truth and not to fear it ; independent for the most 
part of the demands of reputation, which are never 
completely satisfied and put most men*s virtue to a 
trial ; used to consider humanity from higher points 
of view ; such a man regards his own nation as a 
family of men and of brothers, and the distance be- 
tween the nobles and the people seems to him so 



PREVENTION OF CRIMES. 249 

much the less as he has before his mind the larger 
total of the whole human species. Philosophers ac- 
quire wants and interests unknown to the generality 
of men, but that one above all others, of not belying 
in public the principles they have taught in obscurity, 
and they gain the habit of loving the truth for its own 
sake. A selection of such men makes the happiness 
of a people, but a happiness which is only transi- 
tory, unless good laws so increase their number as 
to lessen the probability, always considerable, of an 
unfortunate choice. 

Another way of preventing crimes is to interest the 
magistrates who carry out the laws in seeking rather 
to preserve than to corrupt them. The greater the 
number of men who compose the magistracy, the 
less danger will there be of their exercising any 
undue power over the laws; for venality is more 
difficult among men who are under the close ob- 
servation of one another, and their inducement to 
increase their individual authority diminishes in pro- 
portion to the smallness of the share of it that can 
fall to each of them, especially when they compare 
it with the risk of the attempt If the sovereign 
accustoms his subjects, by formalities and pomp, by 
severe edicts, and by refusal to hear the grievances, 
whether just or unjust, of the man who thinks himself 
oppressed, to fear rather the magistrates than the 

S 



250 PREVENTION OF CRIMES, 

laws, it will be more to the profit of the magistrates 
than to the gain of private and public security. 

Another way to prevent crimes is to reward 
virtue. On this head I notice a general silence in 
the laws of kll nations to this day. If prizes offered 
by academies to the discoverers of useful truths have 
caused the multiplication of knowledge and of good 
books, why should not virtuous actions also be multi- 
plied, by prizes distributed from the munificence of 
the sovereign ? The money of honour ever remains 
unexhausted and fruitful in the hands of the legis- 
lator who wisely distributes it. 

Lastly, the surest but most difficult means of pre- 
venting crimes is to improve education — a subject 
too vast for present discussion, and lying beyond the 
limits of my treatise ; a subject, I will also say, too 
intimately connected with the nature of government 
for it ever to be aught but a barren field, only cultivated 
here and there by a few philosophers, down to the 
remotest ages of public prosperity. A great man, 
who enlightens the humanity that persecutes him, 
has shown in detail the chief educational maxims of 
real utility to mankind ; namely, that it consists less 
in a barren multiplicity of subjects than in their 
choice selection; in substituting originals for copies 
in the moral as in the physical phenomena presented 
by chance or intention to the fresh minds of youth ; 
in inclining them to virtue by the easy path of feel- 



PREVENTION OF CRIMES, 251 

ing ; and in deterring them from evil by the sure 
path of necessity and disadvantage, not by the un- 
certain method of command, which never obtains 
more than a simulated and transitory obedience. 



CHAPTER XLII. 

CONCLUSION. 

From all that has gone before a general theorem 
may be deduced, of great utility, though little com- 
formable to custom, that common lawgiver of nations. 
The theorem is this : * In order that every punishment 
may not be an act of violence, committed by one 
man or by many against a single individual, it ought 
to be above all things public, speedy, necessary, the 
least possible in the given circumstances, proportioned 
to its crime, dictated by the laws.' 




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